E ,kTTORNEY GENERAL OF %%CXAS

Honorable Ned Price, Chairman Industrial AccidentBoard Walton Building Austin, Texas OpinionNo. WW-623
Re:

Dear Judge Price: Does the Industrial AccidentBoard have the authority to pay necessary court costs in defense of the Second Injury Fund createdby Sec. 120-2, Article 8306, Vernon's Revised Civil Statutes, and may the Comptroller Issue warrants for the payment of such costs?
We have receivedyour letter of April 22, 1959, in which you request our opinion on the following question:
"Does the IndustrialAccidentBoard have the authority to pay necessary court costs in defense of the Seoond Injury Fund createdby Section 120-2, Article 8306, Vernon's R.C.S., and may the Comptro!.l.er

issue warrants for payment of such costs?” Section 120-2(a),Article 8306,Vernon's Statutes,providing for the Second Injury F'und, as follows: Civil reads

"In every case of the death of an employeeunder this Act where there Is no person entitled to compensation surviving said employee, the association shall pay to the Industrial Accident Board the sum of Three Thousand Dollars, ($zkOC$),k; be depositedwith the TreasState for the benefit of saidHonorable Ned Price, ChaIRnan,page 2 

### (~~-623)

Fund and the Board shall direct the dlstrlbutlonthereof." (Dnphasls added) Attorney General's Opinion 

### ~-1261to Honorable Sea. Ii.Sheppard, Comptrollerof Public Accounts, dated June 10, 

### 1948,reads In part as follows:

"The 'Second-InjuryFund' is clearly a trust fund and shouldbe deposited in the Trust Section of the State Treasury. Itmay be dlsbursed without specific approprlation as it does not comewithin the constltutlonaIprovision (Sea.

### 6, Art. 

### 8, Const. of Texas)which provides that Inomoney shallbe drawn from the Treasurybut In pursuance of specificappropriationsmade by law; nor shall any appropriation of money be made for a longer term than two years."' Since the Second Injury Fund Is a trust fund for the use and benefit of those employees entitled to compensation therefrom,we are of the opinion that the members of the Board must fulfill the function of the Trustees of such fund In directing "thedistribution thereof" as well as defending the fund Itself from unwarranted raids by Improper claimants.

The Supreme Court of Texas, on June 

### 28, 1950,In CauseNo. A-2642, entered judgment ln the case of Mlears v. IndustrialAcaidentBoard, 149 Tex. 270, 232 

### S.-d) b71, and ordered th t paid from this fund? the costs there Involved shouldbe

"It Is further ordered that the Petitioner,F. M. Miears, do have and recover of and from the Second Injury Fund administeredby the Industrial AccidentBoard of the State of Texas all coats in this behalf expended in this Court and the Court of Civil Appeals and this decisionbe certified to the Mstriat Court for observance.*Honorable Ned Price, Chairman,Page 3 (wW-623)

In so doing, the courthas established that payment of court costswas a necessary incident to the trustees' protection of the fund, and, therefore,was a proper use of the funds there deposited. The Supreme Courthas said that court costs shouldbe paid from this fund. To our mind, the questionhas been resolved,and the question is now settled law,
You are advised that it Is the duty of the Indus- ' trial AccidentBoard to pay court costs incurred In defense of the Second Injury Fund from such fund, and is the duty of the Comptroller to issuewarrants in payment thereof. SUMMARY

It is the duty of the Industrial AccidentBoard to pay court costs incurred In defense of the Second Injury Fund from such fund, and it is the duty of the Comptroller to Issuewarrants in payment thereof.

Yours very truly,
WILL WILSON

TIM:zt:rrr APPROVED: OPINION COMMITTEE Geo. P. Blackburn, Chairman
L. P. Lollar Leonard Passmore Joe Allen Osborn James Daniel McKeithan REVIEWED FOR THE ATTORNEY GENERAL BY: W. V. Geppert