. . 

Honorable Jesse James Opinion No. C-107 

State Treasurer 

Capitol Station Re: Questions relating to the 

Austin 11, Texas maintenance and disbursement of 

the State Conservator Fund under 

the provisions of Section 5 of 

Article 3272b, Vernon's Civil 

Dear Mr. James: Statutes. 

You have requested the opinion of this office with regard 

to the State Conservator Fund establis~hed by the provisions of 

Section 5 of Article 32721, of Vernon's Civil Statutes. 

The relevant portion of Section 5 of Article 3272b reads 

as follows: 

"Section 5. State Conservator Fund. All 

funds received by the State Treasurer under the 

provisions of this Article or from the eacheat of 

any deposit, credit, account or other property 

held by any bank or other institution covered by 

Section l(a) hereof shall be deposited Into a 

separate fund to be known as the 'State Conservator 

Fund 1 from which there shall be set aside and 

main&alned a revolving ex ense fund of Twenty-five 

Thousand Dollars ($25 000 P for the'purpose of paying 

expenses incurred by the State Treasurer in the 

enforcement of the provisions of this Article, 

including the expense of publications, forms 

notices, examinations, travel, and employment of 

necessary personnel; and thereafter any amounts 

remaining unpaid to owners shall be transferred ~to 

the Available School Fund; provided that the State 

Conservator Fund shall never be reduced below'Two 

Hundred and Fifty Thousand Dollars ($250,000). 

This sum shall remain available for payments to 

those who may at any time in the future establish 

their ownership or right as herein provided to any 

deposit or account delivered to the State Treasurer 

under this Act. The mone 

s 

8 

Thousand Dollars ($50 000 

in such fund over Fifty 

shall be invested from 

time to time by the State Treasurer in investments 

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Honorable Jesse James, Page 2 (C-107) 

which are approved by law for the investment of any 

State Funds, and the Income thereof shall be and 

becorn; a part of the said State Conservator Fund. 

. . . 

The specific questions which you have asked are as follows: 

"1 . Does the clause which reads 'provided 

that the State Conservator Fund shall never be 

reduced below Two Hundred and Fifty Thousand Dollars 

($250 000)' mean that no payments should be made 

from this fund that would result in a balance on hand 

of less than $25O,OOO? Is It intended that the sum 

designated be held as a reserve to assure that there 

will be funds available to pay claims, and not merely 

as the original sum from which claims are to be 

regularly paid?" 

"2 . If In your opinion funds in the sum of 

$25O,OOO must be maintained as a reserve when should 

funds be transferred from the State Conservator Fund 

to the Available School Fund and in what amounts?" 

"3. If you conclude that regular payments of 

claims ma be made from the Two Hundred Fifty Thousand 

($250 0007 Dollars referred to is It mandatory that 

monie6 received for the State Conservator Fund under 

the provisions of Article 32721, be held for any specific 

eriod of time before such funds, exceptlng'the 

250,000 referred to and the funds to be~deposited to 

the revolving expense fund, may be transferred to the 

Available School Fund?" 

You further state that there has been no prior departmental 

construction of this provision by your office. 

Your questions relate to the operation and effect of Section 

5 of Article 3272b and It becomes our duty to cotistrue'the language 

of ‘this Section in a manner which will impart a'falr and proper 

meaning to the statute 'and ,at the same time give the, effect 

intended by the Legislature. 

(1881); Magn olia 

Pusse;~ ;a Fgaquhar, 55'Tex.-355 

Petroleum Company lk' 

S.W.2d 929 1935);~ 

125 Tex. 430, 83 

Petroleum Casualty Cornpan+ v. Williams, 15 

S.W.2d 553 Com.App. 19291. 

The primary consideration of statutory construction is to 

determine the intent of the Legislature with respect to the 

particular enactment and once such intent is ascertained we are 

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Honorable Jesse James, Page 3 (c-107) 

to give it force and effect. Trimmier v.~ 

296 S.W; 1070 (1927); Popham v. Patterson, 

Carlton,' Tex. 

; Second Injury Fund v. Keaton, 

121 Tex. 615, 51 

572, 

S.W.2d 

162 Tex. 250, 345 S.W.2d 

If the.intent of the Legislature is discernable from the 

language used. then our lnauirv as to such intent should orooerlv 

go no Further: Qaddy v. First"Nationa1 'Bank; 115 Tex. 39'3, 283 " 

S.W; 472 (1926); Rmplre Gas & Fuel Company v; State, 121 Tex. 

138. 47 S.W.2d 265 (1932). Onthe other hand. where the intent is 

not-clear from the language itself, we may &sort to such aids as 

the legislative history of a particular enactment in order to 

e~rrive-at the Intent of the Legislature. State v. Texas & N.O.R. 

co., 125 S.W. 53 (Civ.App. 1910, error ref.). 

Your first question relates to the significance of the 

limiting phrase, contained in Section 5, which reads: 

,I . provided that the State Conservator 

Fund shall never be reduced below Two Hundred and 

Fifty Thousand Dollars ($25O,OOO)." 

Although you have stated your first question in two parts, 

both parts are directed toward the same inquiry and merely state 

the same question in different terms. As we read this question, 

you are concerned as to whether this limitation prevents the 

payment of claims pursuant to Section 6 of Article 327213 from 

this particular sum of $250,000. 

The general effect of a proviso Is to qualify or limit 

something which it follows. conseauentls its effect is normally , 

limited Eo the clause which next precedes it. 

102,Tex. 448, 119 S.W. 0 (1909); Fenet 

Potter~v.'Robinson, 

v. 

299, 147 S.W. 867 (1912 

McCuiatlon, 105 Tex. 

. 

Bearing this in mind, we are of the opinion that the intent 

of the Legislature with respect to the proviso inquired about is 

clear and unambiguous and any inquiry beyond the language of the 

statute itself would be unwarranted. The phrase which precedes 

the proviso is a directive tothe State Treasurer to transfer funds 

from the State Conservator Fund to the Available School Fund. It 

is the transfer of'funds to the Available School Fund to which the 

limitation of the proviso relates and not the payment of claims 

from the State Conservator Fund. This conclusion is further 

substantiated by the language which immediately follows the 

proviso, which directs that: "This sum shall remain available for 

payments to those who may at any time in the future establish 

their ownership or right as herein provided to any deposit or 

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Honorable Jesse James, Page 4 (C-107) 

account delivered to the State Treasurer under this Act," In our 

opinion, this language constitutes a positive expression by the 

Legislature that the sum of $250,000 is to be specifically used 

for the purpose of paying claims. 

Therefore, in answer to your first question, you are 

advised thst the ~proviso Inquired about does not\mean that no 

payments of claims should be made from the State Conservator Fund 

which would reduce the balance on hand below $250 000 but ~to the 

contrary, such sum was specifically set aside by ~khe fieglsiature 

as a source for the payment of claims properly payable under 

Section 6 of Article 3272b. 

Since we have concluded that the Legislature intended that 

the $250 000 be used as a source for regular payment of claims 

rather than a reserve account, It becomes unnecessary to an'swer 

your second question. 

Turning now to your third question, we find that the intent 

of the Legislature with respect to whether dormant accounts and 

deposits placed into the State Conservator Fund are to be held 

for any specific period of time prior to their.transfer to the 

Available School Fund is not readily discernable from the language 

used. While there is no suzh time period stated in the statute, 

yet, the use of the phrase and thereafter any amounts 

remaining unpaid to owners skil'be transferred to the Available 

School Fund; . . ." lends credence to the argument that the 

Legislature intended that there be a definite period of time 

between the receipt of the accounts and their transfer to the 

Available School Fund during wN& all money received Is to be 

held available for payment to the owner. In the face'of this 

ambiguity we must turn to the rules of statutory constructionfor 

an aid In determining the Intent of the Legislature. As we have 

stated above, the history of a particular statute while before 

the Legislature may be resorted to as an aid to the determination 

of legislative Intent. 

Article 327213 was'placed before the Third Called Session 

of the 57th Legislature as House Bill Number 1 and was laidbefore 

the House of Representatives on'second reading on January 8, 1962; 

The first paragraph of Section 5, as printed.ln-the House Journal, 

Fifty-Seventh Legislature, Third Called Session, January 8, 1962, 

at page 34, reads as follows: 

"Sec. 5. Conservator Fund. 

"All funds received by the State Treasurer 

under the'provisions of this Act OP from the escheat 

of any deposit, credit, account or other property 

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Honorable Jesse James, Page 5 (c-107), 

held by any bank or other institution covered by 

Section l(a) hereof shall be deposited into a 

separate fund to be known as the 'State Conservator 

Fund,' in, which they shall be'retained for a period 

of five (5) years after receipt, and thereafter any 

amounts remaining unpaid to owners shall be transferred to the General Fund; provided that the State 

Conservator Fund shall never be reduced below One 

Quarter of One Million Dollars. This sum shall 

remain available for payments to those who may at. 

any time in the future establish their ownership or 

right as herein provided to any deposit or account 

delivered to the State Treasurer under this Act. 

The mone 8 In such fund over Fifty Thousand Dollars 

($50 000s shall be Invested from time to time by the 

ordegs of the State Ranking Board in investments 

which are approved by law for the Investment of any 

State funds, and the Income thereof shall be and 

become a part of said Conservator Fund." 

House Bill No. 1 was passed by the House of Representatives 

on third reading on January 9 1962 and, as evidenced by the 

House Journal of that date, although several amendments were made, 

Section 5 as quoted above was not changed. The Bill was then 

sent to the Senate where it was referred to the Committee on 

Banking. 

Although House Bill No. 1 as reported out by the Senate 

Committee on Banklng'and as flnaily passed by the Senate was not 

ordered printed in the Senate Journal we are able to determine 

from the House Journal that House Blli No. 1 as changed by the 

Senate was passed by the House of Representatives without change. 

Having thus traced the language of Section 5 of Article 

327215, we now know that the portion of Section 5 which provided 

that funds received under Article 3272b be held In the State 

Conservator Fund for a period of five years before being transferred was deliberately eliminated by the Senate and that the, 

House of Representatives concurred in such action. 

Considering the omission and the fact that no other period 

of time was substituted, we hold that the Legislature thereby 

intended that all'dormant deposits and accounts placed in the State 

Conservator Fund pursu.ant to Article 3272b, with the exception of 

the funds to be deposited to the revolving expense fund and the 

$250 000 fund for refmbursement'of owners be transferred to the 

Avaliable School Fund as soon after rece& as would be reasonable 

within the practical limits of accounting and bookkeeping procedures. 

Having thus determfned the intent of the Legislature with 

regard to the lapse of time between receipt of such fund and their 

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Honorable Jesse James, Page 6 (C-107) 

subsequent transfer, such Intent must prevail over the precise 

language or literal meanf;ng of the words used and any implication 

arising from the phrase and thereafter any amounts remaining unpaid to owners shali be-transferred to the Available School 

Fund D . ." that such transfer should be dependent upon the lapse 

of other than a reasonable time must be~rejected~as leading away 

fromthe.true Intent of the Legislature. 'State v;'Deleadehier 

7 Tex.'76 (1851); 'Forshey~v. Galveston; H.&-R 

(1856); ~Edwards v. Morton 92 Tex. 152 4 S 'w'~7;;'(18g8:;* 

Weber v. Rogan, 94 Tex. 63, 54 S.W. 10i6 (1196Oj. 

In conformity with the foregoing conclusions, we answer 

your third question by stating that there is no specified period 

of time for which funds are to be held In the State Conservator 

Fund before being transferred to the Available School Fund and 

with the exception of such sum as is required to be deposited 40 

the revolving expense fund and within $25O,OOO limitation upon 

the balance to be retained in the State Conservator Fund such 

transfer of funds is to be made as soon after they are r&eived 

as is reasonable, within the limits of accounting and bookkeeping 

procedures. 

SUMMARY 

The proviso of Section 5 of Article 3272b that the 

State Conservator Fund shall never be reduced below 

$250,000 is a limitation upon transfers to be made 

to the Available School Fund and does not restrict 

the regular payment of claims of owners from the 

State Conservator Fund. Dormant deposits and accounts 

placed In the State Conservator Fund under Article 

3272b are not required to be held for any specific 

time prior to transfer to the Available School Fund, 

and such transfer should be made as soon after the 

funds are recefved as 'Is 'reasonable within the limits 

of accounting and bookkeeping procedures. 

Yours very truly, 

WAGGONER CARR 

Attorney General of Texas 

WOS :ca 

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Honorable Jesse James, Page 7 (c-107) 

APPROVED: 

OPINION COMMITTEE 

W, V. Geppert, Chairman 

Malcolm Quick 

Gordon Appleman 

Ernest Fortenberry 

Paul Robertson 

APPROVED FOR THE ATTORNEY GENERAL 

BY: Stanton Stone 

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