**OFFICE OF**  **THE ATTORNEY**  **GENERAL OF**  **TEXAS AUSTIN** 

Xr. i+snola B. HeMhan State Librarian Texas State Library Austin 11, Texas Dear Ar. H0nahan: Oplnlon No. O-7175 Rar Refundingnona

lectil~~,,.

and had not been replacedwith duplicate copies, *%n January 18, 1945, the ;3tste ilbmrian put through a rac,ulsitlon

for a refund to Xiss Preston in the asount or ~4.88. Tiiia

rsquiaitionwas refused by the Coclptroller or **ablio** Accounts. Xlns Treston is asking again that this F;onsy

be refunded.?&. 3ranols Ii. ~hnshsw,Far;8

2

Ws would, tharqfore,llks an answer to the followlr~quastionr "(1) IS it legallypossible to rsturn the borrower'8aonag; or, "(2) Ii that is not poselblr, shallws ccnsidsr the books aa propertythe 3tata has sold and raturn them to the borrowsras purohass~'?~ The booka of ths Library are Cata property,ror thr usa of the pub110 in ecoordanoenlth the statutesand regulationsor the Commissionadopted in pursuanoeof statutoryauthority, Rev. Civ. stat.Art. 5435). (SW

aooks once aoqJiirsd by the State remain in legal oomtemplatlonthe Ctats'sproperty **until** In **8011 legal**  **wy** the **Stats** has disposed of them. The Commissionhas no authorityto dlsposs of suoh books except in somemanner providedbg law. Sin06 there is no statuteauthorizingthe Commissionto aell the books or ths Library,and sines tharahas brsc no rula or ramlotion prescribed :; ;s;ur;o;:,";;;; ;:?A;;%:7power to make rules and regulations, itle to the books has never passrd to Xlss Fraston. 'The situationpresented is not the same as the legal oonosptof thr passing of title from the owner to ona who converts property,upon payI= tha **value** therefor,suoh notionalpaselng of the title bsiug based upon the Impliedconsent of the owner, erldanord by his eleotlon to demanddams&es instaad~ of return of the property, This analogy dcss not hold where the :Xata Is the wrier, ror the **mason** the Stats has no ganeral flgents for disposing or Its propartp -- **there must**  be **statutory** authorityto effeotuatesuoh ohangs 0r title. Sactlon 6 or Artlolr 8, Constitutionof Tsxae provides that "no nonep shsll **be** drawn fro:1 the T4-sasury

but In ,r,orauancr or speolfloaDpsopriations made by law”. ::o nave osrsrullpexamined th4 appropriations msdr to the Texas Libraryand Historioal Co,mmission

and find that the 49th Lat;islaturs did not apprcprlata any aoney from whloh XSS Frastonmay be refundad the sum of Y,.SS.

'?a foll~inrgprovisoVas mElda a part 0: suoh npgro:jriation: Ycrvided that,

all **?.onops** ~?(?id

into the 3tata ?reasury b.7 the state **ilbrsirp** frcn r-funds for lost or badlydalaeed bOOi.3, Tin.3

all moneys for ure-paymentfor nost:%e,drayege, or transportation3ro herebynFcroprlatedfor the Stuta iibr2rg for b3o!cs, postasa,axyzsv, and frslp.ht for the ::tnta Library.'.‘.;r

bmols Ii.

Henshaw, ikgm 3

Thus it la aeon that said sum or money 80 paid by Miss Yraston oan only be used to pay for books, postage, srpreae and fre l.Tht. As statsd above, the stats fit no tine lo.& Its title to the book8 ln question and henoa oan not purchase Ita own property.

?!e thersfors hold that !rlas Frseon aennot be refunded said amount in the nmnnar attemptrd.

It Is the general rula In this State that mnry roluntarlly paid Into tha State Trsesury OannOt be refunded even though the Le&3letura at:smpts to make an appropriation thsreror. Howzve.r, the Courts of this Stete and thle department haa held that the Le~lslature may rotund money wrongfilly paid, when same was paid althor through (1) traud, .(2) under nlatake of rant, or C3)e;;rreason or durs ss . There was nc fraud practiced or duress used.

the mansy was paid under **a !mtual**  mistake or raot, that Is under tie mistaken belief that the books were psrasnently lost, and not merely temporarily mlsplaoed.

It Is therefore our o?lnlon that tha LeglslatLWa nay lawtully make an apprnprlation to Else Praeton In the amount of $4.88. Tour second question, therarors, beoolnsa moot. **Youre vary**  truly ATl’OHNmGENZRAL OF TEXAS

VI, V. Gspprrt **Aselstant**