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

Comptroller of PublicAccounts Austin, Texas Re: Authority of the Comntroller to effect, by a journal entry, a transfer ofmonies from the General Revenue Fund to the Departmental Suspense as a method of refunding money erroneouslydeposited in the Treasury to the GenDear Hon. Calvert: era1 Revenue Fund.

Your request for an opinion reads as follows: 'Iam in receipt of a demand from the Post Office Department for a refund of $Z5.OO to cover duplicatemoney orderpayments. The money currently is deposited to General Revenue. "My concern is the legalmeans that are available tome for refunding such duplicatepayments when using a statement of facts. Such statement includes: "Reference:

ORIGINALMONEY 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 PostalMoney Orders, dated 4-23-64, were deposited 5-26-66 to General Revenue Fund 1, Revenue Code 570, in theamount of $25.00, DepositVoucher Number l5lZl. -3579-,

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

"TheComptroller'soffice held the duplicates pending receipt of information identifying thepurpose of the payment. The deposit was eventuallymade as a 'consciencemoney' payment--unidentified. "On June 20, 1966, the Post Office Department wrote the State Treasurer citing the doublepayment and requesting refund of the $25.00. The Treasurer referred thematter to the Comptroller. llThe questionnow arises, can the Comptroller effect by journal entry a transfer of $25.00 from 'GeneralRevenue Fund' to Departmental Suspense' to remedy a coding error? If such remedy is denied then by whatmeans can restitutionbe made to the Post Office Department?" Section 6 of Article VIII of the Constitution of Texas provides: "Nomoney shall be drawn from the Treasury, but in pursuance of specific appropriationsmade by law;

. . . .'

Money held in suspensedoes 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 (whichconstitutesmoney in the State Treasury) to the Suspense Account would constitute a withdrawal of money from the Treasury. Since themoney has 'been deposited in the General Revenue Fund, suchmoney has passed beyond the control of the State Treasurer and it is now impossible to remove such depositwithout an appropriation. S.W.Zd 216 (1938). Manion v. Lockhart, 131 Tex. 175, 114 In theManion case, a question similar to the one involved in your requestwas 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 theAttorney General, deposited thismoney in the general revenue fund of the state. Respondenthas in no manner profited by such aCt&Qm on his part. He in good faith deposited suchmoney in the general revenue fund,which now requires that it be appropriated by the Legislature in accordance with theprovisions of sectionb 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 compliedwith the advice of theAttorney General, in making such transfer of funds, it would be both unjust and unfair to -3580-Hone Robert S. Calvert;page 3, .(c-742) ',

undertake by writ ofmandamus 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'generalrevenue 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." (Emphasisadded) It is our opinion that theprinciple of law announced in Manion v. Lockhart, supra, is applicable to the facts outlined inyour reauest. Therefore,you are advised that the Comptrollermay not transfer, by journal entry,money deposited in the General Fund to the Suspense Fund for the reason that the same amounts to a withdrawalof money from the Treasury without an appropriationand such action is prohibited by theprovisions of Section 6 of Article VIII of the Constitution of Texas.

In answer to your secondquestion, restitution to the Post Office Department can only be made by the Legislature enacting an appropriation for thepurpose of refunding suchmoney to the ,PostOffice Department. SUMMARY In view of the provisions of Section 6 of Article VIII of the Constitutionof Texas,monies erroneouslydeposited in the State Treasury cannot be withdrawn except inpursuance of specificappropriationsmade by law. Yours very truly, WAGGONER CARR Attorney General of Texas

torneyGeneral JR:mh APPROVED: OPINION COMMITTEE

w. 0. Shultz, Chairman James McCoy Malcolm Quick

. -3581-Hon. Robert S. Calvert, page 4, (C-742)

Ralph Rash Gordon Cass APPROVED FOR THZATTORNEY GENERAL By: T. B. Wright

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