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 Refunding nona 

lectil~~,,. and had not been replaced with 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 rsquiaition was 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 legally possible to rsturn the 

borrower'8 aonag; or, 

"(2) Ii that is not poselblr, shall ws ccnsidsr 

the books aa property the 3tata has sold and raturn 

them to the borrowsr as purohass~'?~ 

The booka of ths Library are Cata property, ror thr usa 

of the pub110 in ecoordanoe nlth the statutes and regulations or 

the Commission adopted in pursuanoe of statutory authority, 

Rev. Civ. stat. Art. 5435). 

(SW 

aooks once aoqJiirsd by the State remain in legal oomtemplatlon the Ctats's property until In 8011 legal wy the Stats 

has disposed of them. The Commission has no authority to dlsposs 

of suoh books except in some manner provided bg law. Sin06 there 

is no statute authorizing the Commission to aell the books or ths 

Library, and sines thara has brsc no rula or ramlotion prescribed 

:; ;s;ur;o;:,"; ;;; ;:?A;;%:7 power to make rules and regulations, 

itle to the books has never passrd to 

Xlss Fraston. 'The situation presented is not the same as the legal 

oonospt of thr passing of title from the owner to ona who converts 

property, upon payI= tha value therefor, suoh notional paselng of 

the title bsiug based upon the Implied consent of the owner, erldanord 

by his eleotlon to demand dams&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 authority to effeotuate suoh ohangs 

0r title. 

Sactlon 6 or Artlolr 8, Constitution of Tsxae provides 

that "no nonep shsll be drawn fro:1 the T4-sasury but In ,r,orauancr 

or speolflo aDpsopriations made by law”. ::o nave osrsrullp examined th4 appropriations msdr to the Texas Library and Historioal 

Co,mmission and find that the 49th Lat;islaturs did not apprcprlata 

any aoney from whloh XSS Fraston may be refundad the sum of Y,.SS. 

'?a foll~inrg proviso Vas 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 badly dalaeed 

bOOi.3, Tin.3 all moneys for ure-payment for nost:%e, drayege, 

or transportation 3ro hereby nFcroprlated for 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’OHNm GENZRAL OF TEXAS 

VI, V. Gspprrt 

Aselstant