Hon. Robert S. Calvert Opinion No. C-742 

Comptroller of Public Accounts 

Austin, Texas Re: Authority of the Comntroller to effect, by a 

journal entry, a transfer of monies from the 

General Revenue Fund to 

the Departmental Suspense 

as a method of refunding 

money erroneously deposited 

in the Treasury to the GenDear Hon. Calvert: era1 Revenue Fund. 

Your request for an opinion reads as follows: 

'I am in receipt of a demand from the Post 

Office Department for a refund of $Z5.OO to cover 

duplicate money order payments. The money currently is deposited to General Revenue. 

"My concern is the legal means that are available to me for refunding such duplicate payments 

when using a statement of facts. Such statement 

includes: 

"Reference: 

ORIGINAL MONEY ORDERS 

Order Number 

21 b B 

:21?6$;ai 

DUPLICATE MONEY ORDERS 

2217605787 

2217605788 ! 

lo.00 4-23-64 

15.00 4-23-64 

z-g:-2; 

- - 

"The two duplicate Postal Money Orders, dated 

4-23-64, were deposited 5-26-66 to General Revenue 

Fund 1, Revenue Code 570, in the amount of $25.00, 

Deposit Voucher Number l5lZl. 

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, 

Hon. Robert S. Calvert, page 2, (C-742) 

"The Comptroller's office held the duplicates 

pending receipt of information identifying the purpose of the payment. The deposit was eventually made 

as a 'conscience money' payment--unidentified. 

"On June 20, 1966, the Post Office Department 

wrote the State Treasurer citing the double payment 

and requesting refund of the $25.00. The Treasurer 

referred the matter to the Comptroller. 

llThe question now arises, can the Comptroller 

effect by journal entry a transfer of $25.00 from 

'General Revenue Fund' to Departmental Suspense' 

to remedy a coding error? If such remedy is denied 

then by what means can restitution be made to the 

Post Office Department?" 

Section 6 of Article VIII of the Constitution of Texas 

provides: "No money shall be drawn from the Treasury, but in 

pursuance of specific appropriations made by law; . . . .' 

Money held in suspense does not go into the State TreasRogers v. Daniel Royal Oil Co., 130 Tex. 386, 110 S.W.2d 

8uGf' @4 (1937). Therefore, a transfer from the General Fund 

(which constitutes money in the State Treasury) to the Suspense 

Account would constitute a withdrawal of money from the Treasury . Since the money has 'been deposited in the General Revenue 

Fund, such money has passed beyond the control of the State 

Treasurer and it is now impossible to remove such deposit without an appropriation. 

S.W.Zd 216 (1938). 

Manion v. Lockhart, 131 Tex. 175, 114 

In the Manion case, a question similar to 

the one involved in your request was before the court, and in 

construing the provisions of Section 6 of Article VIII of the 

Constitution of Texas, the court stated at page 219: 

"It is shown that respondent, acting on the 

opinion rendered by the Attorney General, deposited 

this money in the general revenue fund of the state. 

Respondent has in no manner profited by such aCt&Qm 

on his part. He in good faith deposited such money 

in the general revenue fund, which now requires that 

it be appropriated by the Legislature in accordance 

with the provisions of section b of article 8 of the 

3 Constitution. ave in his 

possession such funds, and, therefore, he is unable, 

without an act of the Legislature, to pay same to 

those entitled thereto. Having complied with the 

advice of the Attorney General, in making such transfer of funds, it would be both unjust and unfair to 

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Hone Robert S. Calvert;page 3, .(c-742) ', 

undertake by writ of mandamus to compel the treasurer to vav this amount of monev out of his nersonal funds. It was contrary to law for the-funds 

to be deposited in the'general revenue fund, as was 

done, but they have passed beyond the: control of the 

treasurer, and it is now impossible for the treasp urer to a 

posited with him." (Emphasis added) 

It is our opinion that the principle of law announced 

in Manion v. Lockhart, supra, is applicable to the facts outlined in your reauest. Therefore, you are advised that the 

Comptroller may not transfer, by journal entry, money deposited 

in the General Fund to the Suspense Fund for the reason that the 

same amounts to a withdrawal of money from the Treasury without 

an appropriation and such action is prohibited by the provisions 

of Section 6 of Article VIII of the Constitution of Texas. 

In answer to your second question, restitution to the 

Post Office Department can only be made by the Legislature enacting an appropriation for the purpose of refunding such money 

to the ,Post Office Department. 

SUMMARY 

In view of the provisions of Section 6 of 

Article VIII of the Constitution of Texas, monies 

erroneously deposited in the State Treasury cannot 

be withdrawn except in pursuance of specific appropriations made by law. 

Yours very truly, 

WAGGONER CARR 

Attorney General of Texas 

torney General 

JR:mh 

APPROVED: 

OPINION COMMITTEE 

w . 0. Shultz, Chairman 

James McCoy 

Malcolm Quick . 

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Hon. Robert S. Calvert, page 4, (C-742) 

Ralph Rash 

Gordon Cass 

APPROVED FOR THZATTORNEY GENERAL 

By: T. B. Wright 

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