OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

Honorable G%o. H. Sheppard 

Comptrolltr or Fublic Aooount.% 

Aurustln, Texas 

Dear Mr. Bhtppard: 

four letter or De 

In obtklng our rttatlon of the tbovt 

liot, you oubmlt the to11 

A 

841, tits 0r the 

gislature, there 

ue Pund $4c4,968.15 

Qtate Treasury by 

s or the ltoond 

rty-fourth Leglalature that a aommird tor the Investment o? thie #4,968.15. 

re has not been anything done in the 

ct with the ~rorl%lon% of HOUM Bill 

vt m%ntloned, %nd since the veteran8 oi 

the Spanieh Am%rloan War hate now applied to th$s 

department for u%e of this wne~y, this department rtepeotf'ully request% your opinion a% to whether or not 

the Comptroller 1% now authorized to transfer rrom 

the General Revenue Fund the #4 968.15 to be invested 

by the oomml%%lon provided for in raid Eouet Bill No. 

363. 
Hon. C&o. H. Bhtppard, January 24, lQS9, Rags 2 

*Ii you hold that thlr wney i;now 8ubjtot 8ubjtot to 

trtntrtr tran8ftr Worn from the Otntral Otntral lkettnut lkettnut ma, ?und, thn.wlll $&en.wlll an appropriation propriation bl the Leglrlaturt Leglrlaturt be ntotrtary ntotrtary fo authorize the tomuil~rlon toanriDrlon to to expend the the lnttrtat lnttmat'dcirireb ’dcirlred 

rrom the the inrtitmtnt inrtitmant 0s 0s thir tuna?* 

At the outret, we d8h to point out that the turn or 

$4.968.15 In pention wa% not dtrlted rrom any rosin tr taxation 

or 8ourte 0r rtvtnut. It rtprt8tnts on the tontrary, the 

balanct Of an orlglaal fund Of #4&&O l pproprlattd by tht Congress 

ot the United 8tate8 under Chapter 647, 85th Congress, 2nd Steelon, 

July 8, '1898, ior the purpon or rtlabur8lng the Governors or 

States tnd Territories ior t 

3 

tnttt lncurrtd by them in aiding 

the United State% to ra18e @n organhe, mb 8upply and equip 

the Volunterr &my or the United State% In the then existing war 

wlth Spain. By Chapter 445, 86tih Congrq.88, Maroh 5, 1899, Amtndatory of the l b OT0 oltdd Act, detailed &ijroOtdure wa% outlined fix 

the dliburremnt of this fund to ofil~ers and tn118ttd men, whioh 

bt, UIDW other thlq8, OOntala8 thl8 8lgnifiOMt plVTi60: 

rfforldtd further, that where ltatea and Ttrritories hart not aid amounts to the ofilter8 and 

YII or any part l$eitot the pay allowed them by 

this &tt the 8Me 8hall be paid by the State8 and 

Ttrrldt8 dirtot to the oiilctrt and mtn, and no 

wney tllowtd by this Act ror orricers and men 8hall bt 

oortred into the trtarury oi the State or Territory.' 

In the ra0e 0r tua unequiTooal protirrlon'and dteplte 

the iaot that ruoh rund or the balance thtrtor belonged to otilotrs 

and tXm8ttd men or vhe Volunteer Army or the United States in 

the liar with SpaInW, the 8amt was by Senate Bill 74 Chapter 27, 

Aote 2nd Called Staelon, 88th Ltglalaturt, oottrtd into the 

Qtntral Revenue Pund, or In other words, Into the State Treasury. 

*NO 83MOia1 mention i8 made Or 8uoh md in that Aot. This Act 

was a general act abolirhlng all rpeolal funds In the State 

Treamry %tt a%ide therein for 8ptf3ial and partleular purposes 

and transttrrlng and plaoing wntys in such fund Into the General 

Revenue Wnd, with oertain txttptione. The orrioial eorrtrrpondence 

attaohed to your letter reTtal% that thlr 8um of $4,968.15 under 

Inquiry was earrled on tht rtoords of the Tmanwy Department and 

Comptroller*8 Department a8 -'The Voluntary War wlth Spain Fund". 

Regardless of whether this fund was in the State Treasury 

before the paesage of the Aot l boll8hlng rptclal fund%, it was 

undoubtedly placed thtrtln by 8uoh hot 8o a8 to rtqulrt, under 
Hon. Cto. H. Sheppard, January 24, 1939, Page 3 

brticlt 8, Section 6, Conrtitution oi Tixat;an appropriation or 

transfer or eamt by Act of the Ltglslatur6. Vor thI8 purpose and 

In reoognition Or the fact that It w&e wrongfully oorared Into the 

State Treaeury the Ltglrlaturt, under Bourt Bill Ho. 369, Chapter 

541, bets Beg& 6t8rion, 44th Leglrlaturt, transferred %uoh 

moneys in the 8ptOiiiCi 8um or #4,968.15 rrom the Central Revenue 

Bund and plaoed rtmt In the-de OS & rptcially oreattd CommI%slon 

Of the Voluntary Army of the War with Spaln,oompostd of the GOYtrnor of Ttxa8, the Adbjutant Central or Texts and the Department 

Commandsrjor the United Spanlrh K&r Veterans of Texas, and their 

8ucot%aor% In 0rfi0t, to be inrested ror the u8t and btntrlt or 

aged and Indigent RpanIrh-&aerlcan War Vettran8, their rldowe and 

033han8. 

From thI8 brltt tongre8%lonal ma leglslatlrt hI8tory 

or.thir muohly trtXi8ftrrtd fund, the question emerges &s to whether Houet RI11 Bo‘; 363 Ch. S41, Acta Regular St88lon, 44th 

LtgI%laturt , could legally o trate to acaompllsh the worthy purr 

8t8 8ought thereby. m rt P uttantly but advI8edly are impelled 

o the tonolu%lon that the NIP of $4,968.15, which was the 8ubjtct 

ratttrjor the above oited act, %a% not funds or wntys of the 

atate of Texas ror dieporrltion thtrtundtr, but rather wneye 

and fund% In and 60 which the United State% ot Amtrioa had, and now 

hae, reTer8Ionary right, olrim or inttreet. This 0OnOlUSiOn not 

only rOiiOW8 from the Acts 0r Congrtee htrefnabove olttd and tiaTtrted to, but from the exprt88 langWIg Oi & lttt6r opinion written by the Comptroller Central or the United State%, under date 

funs 22, 1931, to the Commander, Department ot Texas, United 

2panleh liar Veterans, irhloh we quote: 

“It may be rtattd that Is & rituatlon 8hould arise, 

after the funds have been withdrawn from the State 

Tnarury and pl&Otd at the disposal 0r the Gorernor or 

the State of Texas for payment In aocordanct with yedera1 rtatutte, where they oan not be u8td for the 

purpoee for whloh originally turned;orer to the Corernor 

of the State the United State8 ha%.:a reversionary 

lntereet In the unexpended fund, and the balanoe remaining appears proper ror returning to the United 

States with a ettttmtnt 8howing by total8 for item8 

the grand total expended. The balanoe returned would 

be for covering into the Ttaaury of the United State6 

a8 a aptolal tund unoer an appropriate titlt.,~ suoh ae 

v8p0r Volunteers, Spanish War, State Strvloe - Ttxt8.* 

Any claima thereafter presented would be for developing 

by the State authorities, and, Ii approved by the 

Governor, forwarded to this orriot for the rtatement 

or a settlement payable under the sptolal fund.* , 
I 

. 

. . 

Hon. Geo. H. Sheppard, January 24, 1939, Page 4 

The Aots Or COn@t88 treating thi8 tun4, ot which the 

turn or #4 968.i5 18 the btltnot, did not proride that 8uOh tund 

mlght be intested In bondsjof the Unlttrrlty oi Texarr or any other 

8tcuritiee 80 that the lntertrrt therefrom light be paid to 

Indigent ridowe and orphane oi 8panl8h-Amerloan War Vtterane. 

The naturt,'of the Inreetmtnt provided by the Aot of the Texas 

Legislature and the creation or a Commirslon to make ruch lnvestment, rea8onably &LIsureP, ror all praotloal purpo8t8, the 8artty 

or the OOl'pU8. But, In legal oonttmglatlon, the right to Invest 

these fUX¶e 18 tantamount to the right to di8po86 Or them, and 

this the LegI8lature.:or Ttur oould not ao without en enabling 

act of Congrt88, Indicating the oompltte rtllngulrhment and 

waiver bp the United 8tatts ot any tlalm or revtr8lonary Interest 

lnthi8 fund. 

Ye l .a o t untwtrt or the lauaable purpose8 rought to 

be &ooomplished by the Aot In question, and both the Legislature 

0r Text8 aa the comanatr, Department or Texas Unlttd'Spanleh 

Yar Vottrans rhould be oommended for their efforts to this end, 

/-- but these tOn8id6ratiOn8 do not <er the plain provi%ion% Of the 

Acts of Congtrrs which ortated thlrr fund and which lrmet govern Its 

ultimate diipOIla1. 

We are acoordin y, under law required to adrioe you 

that Eouee Bill Ho. 363 

Legl8lature of Texas, i 

h. 341, &As Regular Session, 44th 

t lntrrtotln to tranartr iron the Gtneral 

.Rertnut rUnd to the Cammi8elon ortated by 8ald Aot, for Inve8tmtnt 

P'=P-e8, 8aId 8~m ot $4,968.15. 

Tours.rery truly l 

LTTOR NEY- o r TExA8 

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