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OFFICE OF,THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

April 11, 1939 

Hoaorable Qeo. R. Sheppard 

Comptroller of Publlo AOoOUBts 

hstin, Texas 

\ 

Dear Sir: 

()p;nion No, 0-44 v-- ‘~-~~__ ~- -..~.~A 

He: Yay the Comptrollar*~'Cepartment 

correct an or-r in bookkeeping 

whereby oertain noneya were BImnaously-plaosd in the General/ 

Revenue.~~Fuad instead of into the 

8U8pt3nSe iitmd? , i 

:?e are pleased to co&y &lx yo:r request of April 3 

for en opinion ;.%ich reada ~8 fol&oM: 

"18 this dap~x-tnrrnt autborieed to oorrsct 

an arror in bookkeeping irhora ,~ronays are Qlaaed 

in the General i%avenu~ that should have been 

plaoed in thaMepenea Acaount? For example: 

. in making alloca+iona of ;aonay paid bko the :. 

State-Treasury this dapavtment erroneously (by 

an error in bookksepingf made the improper dis- 

/ 

~'~trlbutitin, placing noney ,in the General Revenue 

Fand whea,tas a matter of law, it should hare 

been placed‘in the Luapsnso MCI. Does this 

'. department haqo mthority to correct arch er- 

“mrv It 80, X5 there any time Unit governing 

the oorreotion or such ecrorv 

Tho writer hns discussed the altuation which gave rise 

to this question--at aome length with Ur. Cue irarrar, of your departnent, From thib disousoion it appears that in the partiaular 

instanos under consideration, certain taxes paid under the ahala 

store tax aot, *were erroneously deposited to the General Bevenue 

Fund lastsad of to the SusQense mnd. In this instanae deposit 

warrznte have actually been issued in accordance with Article 4333, 

Revised Statutes, as Ynended in 1931, t!nd the money has been cradited to the General i;evanue i-d on the books both of the Comptroller and the iitate Treasurer. 

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7 

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Honorable Gee. II. Sheppard, April 11, 1939, Page 2 

3a 

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provides, 

StlTWtiOB 

(2d) 891, 

the State 

the State 

Article VIII, Section 6 of the Constitution of Texas 

in part: 

"No money shall be drawn fmmthe Treasury but in pursuance of speaifio appropriations made by law; * * v e 

This provieioa has aonoistently been given a striot oonby the courts of this State. 

In Rogers, et al. vs. Daniel Oil .t Royalty Co., 110 5.71. 

the Texas Supreme Court deolared that money deposited with 

Treasury in a suspense fund is not aonsidered a8 being in 

Treasury. At page 894 of that opinion Judge Critz said: 

"Yhen we oome to consider the suspense 

statute, we find that it certainly oompletely 

and adequately affords the protesting toxpoyer 

,a complete and adequate remedy at law for the 

principal amount of the tax paid under protest. 

Under suah statute, when the money paid is aoaompanled by the statutory protest of the peraon paying, the offioinl reaeivlng the same 

nust transmit it to the State Treasurer. In 

such instances the treasuror does not plaoe the 

money in the State Treasury, as suah, but plaoee 

it in suspense. If-a suit is filed in a proper 

aourt in Travis oounty -within ninety daya rrom 

date of payment, the money remains in suspense 

until the suit is finished, and then the money 

is completely subjeot to the oourt's judgment. 

Under the statute, einoe the monog does not go 

into the treasury, as suoh, no additionallegislative enaotment is neoeeaary to enable the 

treasurer to do with it as dlreoted by the statute or the oourt.w 

A qusetion very similar to the one here under consideration wa8 deolded by the Texas Supreme Court in the oase of ?&anion 

VE. Lookhart, 114 j.3'. (Zd) 210. Xe quote from that opinion: 

"It 15 shozn that reopondent, acting on the 

opinion rendered by the Attorney Cenernl, deposited this money in the c;enera.l revenue fund of 

the state. ilespondent has In no manner profited 

by such action on his part. He in c;ood faith deposited such money in the general revenue fund, 

which non requires thet it be appropriated by 

the iaglslaturo in aooordanoe with the provleions of section 6 of article 8 of the Constitu- 

&ion. fieapondent does not now hnve In !11s posees- 

. slon suoh funtie; iind, therefore, he la unable, 

m Lo'._ , . . 
IIonorable Ceo. H. Sheppard, April 11, 1939, t?oSe 3 

without an Rot of the Legislature, to pny same 

to those entitled thereto. Having aomplled 

with the advioe of the Attorney General, in 

making suoh transfer of iunds, It :muld be both 

unjust and unfair to undertake by jrrit of mandamus to oompel the treasurer to pay this 5xount 

or money out of hi5 personal funds. It ~85 contrary to law ior the funda to be de-sosited. in 

the general revenue fund. ne was done, but they 

have pesoed beyond the control 01' the Weusurer, 

end it la now imoosaible lor tho treasurer to 

pay to relator the amount of r‘un(is so deposited 

with him. + + ry 

*It is undl5puted that relator ha5 fully 

oomplied with the 1~ and 15 entitled to be 

phid the sum of money olnlmed by aim. It is 

not shown, however, that relntor cannot obtain 

the money due him by another complete slnd ndequate remsdy. ?d?Iilo it iS tN8 that the mOn8y 

due relator ,288 been plaO8d in the Ser&erzXl r8V8- 

nue f'und, the Lagislature has not refused to make 

a speoiPio appropriation to pey rolutor’s demand 

therefor." 

‘e 11x5 unable to drru a distinction between the abOV8 

citnd case, .zberein the Xnte Treasurer improperly deposited Eoney 

in the General revenue iuad on the miStak% advice of the Attorney 

General md the instz.Elt 0898 where the seme mistake acoNed by r8aBOG of a bookkeeping 8rrOr. 

Upon the authority of f&nion VS. Lookhart, Bupra, we reepeotfully advise you that the Comptroller~s D8partment may not 

withdraw money from the general revenue mund and piece it in the 

Buspenee fund in order to reotlfy a prorloue bookkeeping error, 

or for any other reason, except upon apeoirlo dlreotlon by the 

Legislature.