MARK WHITE Attorney General

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# The Attorney General of Texas
February 11, 1982

Mr. Lias B. "Bubba" Steen COUlllliSSiOll~~ TexasDepartment of Labor and Standards E. 0. Thompson StateOffice Bldg. P. 0. Box 12157 Austin, Texas 78711 opinionNo. MW-443 Ret License fee for farm labor contractors

DearMr. Steen: You have asked our opinionregarding the effect of House BillNo. 2089 on article 5221a-5, V.T.C.S. House Bill No. 2089, which became effectiveAugust 31, 1981, exempts laboragentswho have registeredas farm labor contractors under the Farm Labor Contractor Registration Act of 1963. as amended (7 U.S.C. section 2041 et seq.), from the provisionsof article 5221a-5. At issue iswhether individualswho paid a license fee as a labor agent under the state law are now entitled to a pro-rata refund of some portion of that annual fee if they are registeredas farm labor contractorsunder the federal act. The questionwould only apply to those individualswho paid the state labor agent fee after September 1, 1980, since it is an annual feeand the exemption inHouse BillNo. 2089 became effective August 31, 1981. In addition, it would only apply to those individualswho meet theabove stated criteriaand have registeredas farm labor contractorsunder the federalact. We note here thatmoney paid to the TexasDepartment of Labor and Standards as labor agent license fees is to be deposited into the GeneralRevenue Fund as requiredby section 9 of article 5221a-5. We are advised that the Texas Department of Labor and Standards, in anticipation of this problem, has placed said license fees in a suspense account with the state treasurer, as provided by article 4388. Notwithstanding the above, all state money, including that in special funds, is subject to the restrictionsof article 8, section 6 of the Texas Constitutionwhich reads in relevantpart:

No money shall be drawn from the Treasury but in pursuance of specific appropriations made by law....

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However, the legislaturehas specificallymade provision for the refund of money in section 26 of the 1981 General AppropriationsAct which reads: Any money deposited into the State Treasury

which is subject to a refund as provided by law shall be refunded from the fund into which such money was deposited, and so much as is necessary for said funds is hereby appropriated. Acts 1981, 67th Leg., ch. 875, at 3811. This section has been construed to allow a state agency to refund money if the law of the state allows for such refund. See Attorney General Opinions H-224 (1974);H-716 (1975). -
We find no language in House Bill No. 2089 or article 5221a-5 which authorizes a refund of money paid as a license fee under any circumstances. In the absence of specific statutory authorization, the general law of this state expressed in its court decisions recognizes three separate grounds which will support a claim for refund of feespaid to the state; these are (1) fraud, (2)mistake of fact, and (3) duress. Attorney General Opinions O-6282, O-6974 (1945);See alsoAttorneyGeneralOpinionO-7113 (1946). We will now consider whether the payment of the license fees inquiredaboutwas made in such amanner as to comewithin themeaning of any of the above three categories. A license fee is but a price exacted by the state through its police powers for the exercise of a privilege, payment of which is made prerequisite to the right to exercise the privilege sought. The state has unquestioned authority to exact license fees reasonable in amount forpurposes of regulation. Section 3(c) of article 5221a-5provides:

The application shall be examined by the Commissioner. If he finds that the same complies with the law and that the applicant is entitled to a licenseand pays the annual license fee of Fifty Dollars ($50). then he shall issue a license to the applicant. Each license issued by the Commissioner shall be good for a period of one year from date of issuance. (Emphasisadded). Under the circumstancesand facts you have presented,we are of the opinion that payment of labor agency licensing fees do not fall under any of the three aforementioned categories. At the time the labor agent license fees were paid, the party making application had

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full knowledge of all facts surrounding his application for registrationas a laboragent. Therewas no fraud ormistake of fact. As to duress, the Supreme Court of Texas in the case Galveston City Companyv. Galveston, 56 Tex. 486, 492 (1882),stated:

In determining whether the money was voluntarily paid or not, an inquirymust be made into the intention of the parties at the time the money was paid; and unless it appears that, at that time, therewas an unwillingness to pay, the payment must be held to have been voluntarily made.... In the instant case we can find no indication that at the time the labor agent license fees were paid, there was any reluctance or unwillingnesson thepart of a licenseapplicant topay the fees. We therefore findno statutoryor lawfulauthorizationforyou to refund any portion of the labor agent license fees. We thereforedo not reachyour additionalquestion. SUMMARY Due to the absence of statutoryor common law authorization, annual license fees paid by labor agents under article 5221a-5 are non-refundable even though subsequentlegislativeactionmay have exempted a certain class of labor agents from the requirementof the statute. Very trulyyours, /I

MARK WHITE AttorneyGeneral of Texas JOHNW. FAINTER,JR. FirstAssistantAttorneyGeneral RICHARDE. GRAY III ExecutiveAssistantAttorneyGeneral Preparedby Ed Salazar AssistantAttorney General

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APPROVED: OPINION COMMITTEE SusanL. Garrison,Chairman Jon Bible Rick Gilpin Jim Moellinger Ed Salazar

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