### THEAYTORNEY GENERAL OFTEXAS
AUSTIX ta.T~xan

January 30, 193~
Hon. Charley Lockhart State Treasurer Austin, Texas
Dear Sir: Opinion No. O-108 Re:Authority of State Treasurer to transfer money from General Revenue Fund to Settlement of Estates Fund.
Your letter of January 13, 1939, wherein you request the opinion of th-isdepartment on certain questions therein set forthhas been referred to thewriter for attention.
In order that the basis foryour questions might be fully understood by all af,fectedby this opinion, we sat forth the pertinent parts of your letter, whioh are as follows: "Upon authority from the State Comptroller based upon opinion No. 2890, dated August 28, 1932, the State Treasurer transferred onAugust 30, 1932, allmoney in the Settlement of Estates Fund to the General Fund of the State of Texas. Thismoney was deposited in the Settlement ofEstates Fund in compliance with Articles Nos. 3644 to 3660 of theRevised Statutes of 1925 of the State ofTexas+ "Relying upon opinion No. 2890, dated August 28, 1932, the State Treasurer deposited allmoney inthe General Fund which was paid tohim as provided inApttales 3644 to3660, fromAugust 28, 1932, toMarch 16, 1938. Cn March 16, 1938, the Supreme Court ruled inCause No. 7355, Manion vs. Lockhart, State Treasurer, that Mandamus couldnot be issued to compel the Treasurer to pay out of the General Fund money paid tohim under Provision of Articles 3644 to 3660, but the Court did say that such funds should not have been placed in the General Fund. The Court further ruled that the State Treasurer is liable personally for having placed such money Ln theGeneral Fund instead of keeping it in trust. All suchmoney which has been deposited with the State Treasurer since Marah 16, 1938, has been placed in the Settlement ofEstates Fund by the State Treasurer and State Comptroller.Hon. Charley Lockhart, January 30, 1939, page 2,

"Inview of the facts herein stated, please following questions: O-108

answer the
"(1)

### Do the Sta.teTreasurer and State Comptroller have authority to transfer baok to the Settlement of Estates Fund themoney transferred to theGeneral Revenue Fund on August 30, 19327

“(2) Do the State Treasurer and State Comptroller have authority to transfer to the Settlement of Estates Fund money deposited to theGeneral Fund from August 30, 1932, toMarch 16, 1938, which should have been deposited inthe Settlement ofEstates Fund? "(3) Under Articles 3653 to 3655, do theState Treasurer and State Comptroller have authority to issue warrant8 on the Settlement of Estates Fund in payment of claims without appropriation by the Legislature?
'IIt**is** understood that any amounts heretofore appropriated by the Legislature from the General Fund forpayment of claims against themoney transferred to theGeneral Fund onAugust 30, 1932, and deposited to the General Fund from **AUgUSt** 30, 1932, to March 16, 1938, are tobe deducted from the amount tobe transferred back to the Settlement ofEstates Fund." Judge Sharp of theSupreme Court-of Texas, in the case of Manion vs. Lockhart, Sta.teTreasurer, 114 SW (2nd) 216, diSCUSSing the condition8 set out in the foregoing request, said of the State Treasurer: "He, in ood faith, deposited suchmoney in the General Revenue 5und,which now requires that itbe appropriated by the Legislature inaccordance with the provisions of Section 6 ofArticle 8 of the Constitution." Section 6 ofArticle 8 of the Constitution reads as follows:
"Nomoney shallbe drawn from the Treasury but inpursuance of specific appropriations made by law; nor shall any appropriation ofmoney bemade for a longer term than two years, except by the firstLegislature toassemble under this Constitution, which may make thenecessary appropriations to carry on the government under the assemblage of the sixteenth Legislature."
In substanbe, Judge Sharp held in-the abovementioned case that the condition8 under which the Settlement of the Estates Fund were transferred to the General Revenue Fund were immaterial on the question of the strict applicability of theplain pro-Hon. Charley Lockhart, January 30, 1939, page 3, O-108

visions of Seation 6ofArticle 8 of the Constitution. In this connection, he says:
"Itwas contraiy to law for the funds tobedeposited in the General Revenue kund, aswas done, but they have passed beyond the control of the Treasurer, and It lanow impossible for the Treasurer topay to relator the amount of funds sodeposited with him." If the funds inquestion passed beyond your control as Treasurer, and made impOS8ible your paying relator in the abovementioned case, the amount ofmoney so deposjted with you and towhich he had established his right by judgment, can Itt be said that suchfunds have not passed beyond your control with respect to your ability to transfer the same out of that same fund, held by Judge Sharp to be beyond your control, back Into the Settlement of Estates Fund? Clearly, if SUCh fund8 have passed beyond your control-for .thevery purpose for which they were originally paid toyou, theyhave passed beyond your control forevery other purpose. Articles 3653 and 3654 provide the mode of recovery by the person claiming such fund8 previously deposited with the State Treasurer, and provide that upon the filing ofpetition that citation shall issue to the County or DiStriot Attorney inthe county inwhich such suit is filed to appear and represent the State insuch cause. Article 3655 provides for themethod ofproaedure after the ,.' institution of suit and reads: "Theproceeding8 in such suit shall be governed by the rules for other civil suits; and should the plaintiff establish his right to the fund8 claimed, he shallhave a judgment therefor, which shall specify the amount to which he is entitled; and acertified copy of such judgment shall be sufficient authority for theTreasurer topay the same." Judge Sharp in the abovementioned opinion;clearly potits out with respect to the Settlement ofEstate8 Fund, the difference between paying money “tothe State Treasurer" and inpaying money "Lnto the State.Treasury'. Article 3644 clearly provides that the funds involved in your inquiry are tobe paid "to theTreasurer". Judge Sharp says: 9.'hUS,It is seen that the law provides themethod for the papnt of certain funds to the State Treasurer and specifically prescribes how Said funds may be aollected from the Treasurer. After describing indetail theprocedure to bepursued to collect such money from the Treasurer, it 5s finally provided; 'And a certified co=_ .,

Hon. Charley Lockhart, January30, 1939, Page 4,O-108

of auoh judgment shall be sufficient authority for the Treasurer to pay the same.'"
In vrew of the reasoning of Judge Sharp inthe abovementioned opinion to the effeot that the Settlement ofEstates Fund is a speoial fund and that In substance the State Treasurer is but the custodian or trustee byvirtue of the statutes, and in view of the further fact that Article 3655 clearly provides that: It&d a certified co of such ;me;Aa;; isthe opinion ,aath&'yf;r, 2; tre-?p$ ;tep;z udgment shall be sufficient ",$

(a)Your questions Nos..1 and 2 are answered in the negative and, (b)Your question No. 3 is answered in the affirmative. Trusting that the foregoing answers your inquiry, we remain

Very truly yours ATTORNEY GENERAL OFTEXAS By Lloyd Armstrong Assistant
Lh:hW/cg APPROVED: s/ Gerald C.Mann ATTORNEY GEXERAL OFTEXAS