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-is department on certain questions therein set 

forth has been referred to the writer for attention. 

In order that the basis for your questions might be fully 

understood by all af,fected by 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 on August 30, 1932, all money in 

the Settlement of Estates Fund to the General Fund of 

the State of Texas. This money was deposited in the 

Settlement of Estates Fund in compliance with Articles 

Nos. 3644 to 3660 of the Revised Statutes of 1925 of 

the State of Texas+ 

"Relying upon opinion No. 2890, dated August 28, 1932, 

the State Treasurer deposited all money in the General 

Fund which was paid to him as provided in Apttales 3644 

to 3660, from August 28, 1932, to March 16, 1938. Cn 

March 16, 1938, the Supreme Court ruled in Cause No. 

7355, Manion vs. Lockhart, State Treasurer, that 

Mandamus could not be issued to compel the Treasurer to 

pay out of the General Fund money paid to him 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 the General Fund instead of keeping it in trust. 

All such money which has been deposited with the State 

Treasurer since Marah 16, 1938, has been placed in the 

Settlement of Estates Fund by the State Treasurer and 

State Comptroller. 
Hon. Charley Lockhart, January 30, 1939, page 2, 

"In view of the facts herein stated, please 

following questions: 

O-108 

answer the 

"(1) Do the Sta.te Treasurer and State Comptroller 

have authority to transfer baok to the Settlement of 

Estates Fund the money transferred to the General 

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 the General Fund 

from August 30, 1932, to March 16, 1938, which should 

have been deposited in the Settlement of Estates Fund? 

"(3) Under Articles 3653 to 3655, do the State 

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 for payment 

of claims against the money transferred to the General 

Fund on August 30, 1932, and deposited to the General Fund 

from AUgUSt 30, 1932, to March 16, 1938, are to be 

deducted from the amount to be transferred back to the 

Settlement of Estates Fund." 

Judge Sharp of the Supreme Court-of Texas, in the case of 

Manion vs. Lockhart, Sta.te Treasurer, 114 SW (2nd) 216, 

diSCUSSing the condition8 set out in the foregoing request, 

said of the State Treasurer: 

"He, in ood faith, deposited such money in the General 

Revenue 5 und, which now requires that it be appropriated 

by the Legislature in accordance with the provisions of 

Section 6 of Article 8 of the Constitution." 

Section 6 of Article 8 of the Constitution reads as follows: 

"No money shall be drawn from the Treasury but in pursuance 

of specific appropriations made by law; nor shall any 

appropriation of money be made for a longer term than two 

years, except by the first Legislature to assemble under 

this Constitution, which may make the necessary 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 the plain pro- 
Hon. Charley Lockhart, January 30, 1939, page 3, O-108 

visions of Seation 6 of Article 8 of the Constitution. In this 

connection, he says: 

"It was contraiy to law for the funds to be deposited in 

the General Revenue kund, as was done, but they have passed 

beyond the control of the Treasurer, and It la now impossible for the Treasurer to pay to relator the amount of 

funds so deposited with him." 

If the funds in question passed beyond your control as 

Treasurer, and made impOS8ible your paying relator in the 

abovementioned case, the amount of money so deposjted with 

you and to which he had established his right by judgment, can 

Itt be said that such funds 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 .the very purpose for which 

they were originally paid to you, they have passed beyond your 

control for every 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 of petition that 

citation shall issue to the County or DiStriot Attorney in the 

county in which such suit is filed to appear and represent the 

State in such cause. 

Article 3655 provides for the method of proaedure after the ,.' 

institution of suit and reads: 

"The proceeding8 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 shall have 

a judgment therefor, which shall specify the amount to 

which he is entitled; and a certified copy of such 

judgment shall be sufficient authority for the Treasurer 

to pay the same." 

Judge Sharp in the abovementioned opinion;clearly potits out 

with respect to the Settlement of Estate8 Fund, the difference 

between paying money “to the State Treasurer" and in paying 

money "Lnto the State.Treasury'. Article 3644 clearly 

provides that the funds involved in your inquiry are to be 

paid "to the Treasurer". Judge Sharp says: 

9.'hUS, It is seen that the law provides the method for 

the papnt of certain funds to the State Treasurer and 

specifically prescribes how Said funds may be aollected 

from the Treasurer. After describing in detail the procedure to be pursued to collect such money from the 

Treasurer, it 5s finally provided; 'And a certified co= 
_ ., 

Hon. Charley Lockhart, January 30, 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 in the abovementioned 

opinion to the effeot that the Settlement of Estates Fund is 

a speoial fund and that In substance the State Treasurer is 

but the custodian or trustee by virtue of the statutes, and in 

view of the further fact that Article 3655 clearly provides 

that: It&d a certified co of such 

,aath&'yf;r, 2; tre-?p$ ;tep;z ;me;Aa;; is the opinion 

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 OF TEXAS 

By Lloyd Armstrong 

Assistant 

Lh:hW/cg 

APPROVED: 

s/ Gerald C. Mann 

ATTORNEY GEXERAL OF TEXAS