. .

Honorable Jesse James OpinionNo. C-107

State Treasurer Capitol Station Re: Questions relating to the Austin 11, Texas maintenance and disbursement of the State ConservatorFund under the provisions of Section 

### 5 of Article 3272b,Vernon's Civil Dear Mr. James: Statutes.

You have requested the opinion of this officewith regard to the State ConservatorFund establis~hed by the provisions of Section 

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

### 5 of Article 3272b reads as follows:
"Section 5. State ConservatorFund. All

funds receivedby the State Treasurerunder the provisions of this Article or from the eacheat of any deposit, credit, account or otherproperty held by any bank or other institution coveredby Section l(a) hereof shall be deposited Into a separate fund to be known as the 'StateConservator Fund 1from which there shallbe set aside and main&alned a revolving ex ense fund of Twenty-five Thousand Dollars ($25 000 P for the'purpose of paying expenses incurredby the State Treasurer in the enforcement of the provisions of this Article, including the expense of publications, forms notices, examinations,travel, and employment of necessarypersonnel; and thereafterany amounts remainingunpaid to owners shall be transferred~to the Available School Fund; provided that the State ConservatorFund shall never be reducedbelow'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. Themones8 Thousand Dollars 

### ($50000 in such fund over Fifty shall be invested from time to timeby the State Treasurer in investments

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### (C-107)

which are approvedby law for the investment of any State Funds, and the Income thereof shall be and becorn;

a part of the said State ConservatorFund.

. . . The specific questionswhich you have asked are as follows:
"1

. Does the clausewhich reads 'provided that the State ConservatorFund shallnever be reducedbelow Two Hundred and Fifty ThousandDollars ($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 designatedbe 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 regularlypaid?"

"2

. If In your opinion funds in the sum of $25O,OOOmust be maintained as a reserve when should funds be transferred from the State ConservatorFund to the Available School Fund and in what amounts?"


### "3. If you conclude that regularpayments of claimsma be made from the Two Hundred Fifty Thousand ($250 0007 Dollars referred to is Itmandatory that monie6 received for the State ConservatorFund 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 provisionby your office.

Your questionsrelate to the operationand effect of Section 

### 5 of Article 3272b and It becomes our duty to cotistrue'the language of ‘thisSection in a manner which will impart a'falr and proper meaning to the statute 'and,atthe same time give the,effect intendedby the Legislature. 

### (1881);Magnolia Pusse;~ ;a Fgaquhar, 

### 55'Tex.-355

Petroleum Company lk' S.W.2d 

### 929 1935);~ 125Tex. 

### 430, 83 Petroleum Casualty Cornpan+ v. Williams, 

### 15 S.W.2d 

### 553 Com.App. 

### 19291.

The primary consideration of statutory constructionis to determine the intent of the Legislaturewith respect to the particular enactmentand once such intent is ascertainedwe 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 

### 162Tex. 

### 250, 345S.W.2d

If the.intent of the Legislature is discernablefrom the languageused. 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.2d265 (1932). Onthe otherhand. where the intent is not-clear from the language itself,we may &sort to such aids as the legislativehistory 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 limitingphrase, contained in Section 

### 5,which reads:

,I

.provided that the State Conservator Fund shall never be reducedbelow Two Hundred and Fifty ThousandDollars ($25O,OOO)." Although you have statedyour 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 concernedas to whether this limitationprevents 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 somethingwhich it follows. conseauentls its effect is normally , limited Eo the clausewhich next precedes it. 102,Tex. 

### 448, 119 S.W. 0 (1909);Fenet Potter~v.'Robinson,
v. 

### 299,147S.W. 867 (1912 McCuiatlon, 105 Tex.



### . Bearing this inmind, we are of the opinion that the intent of the Legislature with respect to the proviso inquired about is clear and unambiguous and any inquirybeyond the language of the statute itselfwould be unwarranted. The phrase which precedes the proviso is a directive tothe State Treasurer to transfer funds from the State ConservatorFund to the Available School Fund. It is the transfer of'funds to the Available SchoolFund to which the limitation of the proviso relates and not the payment of claims from the State ConservatorFund. This conclusion is further substantiatedby the languagewhich 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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### (C-107)

account delivered to the State Treasurerunder this Act," In our opinion, this language constitutesa positive expressionby the Legislature that the sum of $250,000 is to be specificallyused for the purpose of paying claims.

Therefore, in answer to your first question,you are advised thst the~provisoInquiredabout does not\mean that no payments of claims shouldbe made from the State ConservatorFund which would reduce the balance on hand below $250 000 but ~tothe contrary, such sum was specifically set aside by ~khefieglsiature
as a source for the payment of claimsproperly payableunder 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 becomesunnecessary to an'swer your second question.

Turning now to your third question,we find that the intent of the Legislaturewith respect to whether dormant accounts and deposits placed into the State ConservatorFund are to be held for any specificperiod of time prior to their.transferto 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 thereafterany amounts remainingunpaid to owners skil'be transferred to the Available School Fund;

. . ." lends credence to the argument that the Legislature intended that therebe a definiteperiod of time between the receipt of the accounts and their transfer to the Available School Fund during wN& allmoney received Is to be held available for payment to the owner. In the face'of this ambiguitywe must turn to the rules of statutory constructionfor
an aid In determining the Intent of theLegislature. As we have stated above, the history of a particular statutewhile before the Legislaturemay be resorted to as an aid to the determination of legislative Intent.
Article 327213

was'placedbefore the Third Called Session of the 57th Legislatureas 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-theHouse Journal, Fifty-Seventh Legislature,Third Called Session, January 

### 8, 1962, at page 

### 34,reads as follows:

"Sec. 

### 5. ConservatorFund.
"All funds receivedby the State Treasurer under the'provisions of this Act OP from the escheat of any deposit, credit, account or otherproperty

-530-Honorable Jesse James, Page 

### 5 (c-107),

held by any bank or other institution coveredby Section l(a) hereof shall be deposited into a separate fund to be known as the 'StateConservator Fund,' in,

which they shallbe'retained for a period of five 

### (5)years after receipt, and thereafterany amounts remainingunpaid to owners shall be transferred to the General Fund; provided that the State ConservatorFund shallnever be reducedbelow 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 hereinprovided to any deposit or account delivered to the State Treasurerunder this Act. The mone 8 In such fund over Fifty ThousandDollars 

### ($50000s shall be Invested from time to timeby the ordegs of the State Ranking Board in investments which are approvedby law for the Investment of any State funds, and the Income thereof shall be and become a part of said ConservatorFund."

House Bill No. 1 was passed by the House of Representatives
on third reading on January 9 

### 1962 and, as evidencedby the House Journal of that date, although several amendmentsweremade, 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 outby the Senate Committee on Banklng'and as flnaily passed by the Senate was not orderedprinted in the Senate Journal we are able to determine from the House Journal that House Blli No. 1 as changedby the Senate was passed by the House of Representativeswithout 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 receivedunder Article 3272bbe held In the State ConservatorFund for a period of five years before being transferred was deliberately eliminatedby the Senate and that the, House of Representativesconcurred in such action.

Consideringthe omissionand the fact that no otherperiod of time was substituted,we hold that the Legislature thereby intended that all'dormantdeposits and accounts placed in the State Conservator Fund pursu.antto Article 3272b,with the exception of the funds to be deposited to the revolving expense fund and the $250 000 fund for refmbursement'ofowners be transferred to the Avaliable School Fund as soon after rece& as would be reasonable within the practical limits of accounting and bookkeepingprocedures.

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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### 6 (C-107)

subsequent transfer, such Intentmust prevail over the precise language or literalmeanf;ngof the words used and any implication arising from the phrase and thereafterany amounts remaining unpaid to owners shalibe-transferred to the Available School Fund D

. ." that such transfer shouldbe dependentupon the lapse of other than a reasonable timemust be~rejected~as leading away fromthe.true Intent of the Legislature. 'Statev;'Deleadehier 

### 7 Tex.'76 

### (1851);'Forshey~v.Galveston;

### H.&-R (1856);

~Edwardsv. Morton 92 Tex. 152 4 S

### 'w'~7;;'(18g8:;* Weber v. Rogan, 94 Tex. 63, 54 S.W. 

### 10i6 (1196Oj.

In conformitywith the foregoing conclusions,we answer your third questionby stating that there is no specifiedperiod 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 limitationupon the balance to be retained in the State ConservatorFund 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 ConservatorFund shall never be reducedbelow $250,000 is a limitationupon transfers to be made to the Available School Fund and does not restrict the regularpayment of claims of owners from the State ConservatorFund. Dormant deposits and accounts placed In the State ConservatorFund under Article 3272b are not required to be held for any specific time prior to transfer to the Available School Fund, and such transfer shouldbe 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 GordonAppleman Ernest Fortenberry Paul Robertson

APPROVED FOR THE ATTORNEY GENERAL BY: Stanton Stone

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