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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 oertainnoneya were BImnaously-plaosd in the General/ Revenue.~~Fuad

instead of into the 8U8pt3nSeiitmd?, i
:?eare pleased to co&y &lx yo:r request of April 3 for en opinion ;.%ichreada ~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 shouldhave **been** plaoed in thaMepenea Acaount? For example:

. inmaking alloca+ionaof ;aonaypaid bko the :. State-Treasury thisdapavtment erroneously (by an error in bookksepingfmade the improper dis- / ~'~trlbutitin,

placingnoney ,inthe General Revenue Fand whea,tas a matter of law, it shouldhare beenplaced‘in the Luapsnso MCI. Does this '.departmenthaqo mthority to correct arch er- “mrv 

## It 80, X5there any time Unit governing the oorreotionor such ecrorv Tho writer hns discussed the altuationwhich gave rise to this question--at aome length withUr. Cue irarrar, of your departnent, From thib disousoion it appears that in the partiaular instanosunder consideration,certain taxes paid under the ahala 

### store tax aot, *were erroneouslydeposited to the General Bevenue Fund lastsadof to the SusQense mnd. In this instanaedeposit warrznte have actuallybeen issued in accordancewith Article 4333, Revised Statutes, as Ynended in 1931, t!ndthemoney 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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HonorableGee. II.Sheppard,April 11, 1939, Page 2 

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provides,

StlTWtiOB

(2d)891, the State the State Article VIII, Section 6 of the Constitutionof Texas

in part:
"Nomoney shall be drawn fmmthe Treasury but in pursuance of speaifio appropriations made by law; * * v e This provieioahas aonoistentlybeen given a striot oonby the 

### courts of this State.
In Rogers, et al. vs. Daniel Oil .t

### Royalty Co., 110 5.71. the Texas 

### SupremeCourt deolared thatmoney depositedwith 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 ,acomplete and adequate remedy at law for the principal amount of the tax paid under protest. Under suah statute,when the money paid is aoaompanledby the statutoryprotest of theperaon paying, the offioinl reaeivlng the same nust transmit it to the State Treasurer. In such instancesthe 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 themoney 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 dlreotedby the statute or the oourt.w
A qusetionvery similar to the one here under considerationwa8 deolded by the Texas Supreme Court in the oase of ?&anion VE. Lookhart, 114 j.3'.(Zd) 210. Xe quote from thatopinion:

"It 15 shozn that reopondent,acting on the opinion renderedby the Attorney Cenernl, deposited thismoney 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;oodfaith deposited suchmoney in the general revenue fund, which non requires thet it be appropriatedby the iaglslaturo in aooordanoewith 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'._ , . .IIonorableCeo. H. Sheppard, April 11, 1939, t?oSe3

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 jrritof mandamus to oompel the treasurer to pay this 5xount 

### ormoney 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 slndndequate remsdy. ?d?Iilo it iS tN8 that the mOn8y due relator ,288been 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 11x5unable to drru a distinction between the abOV8 citnd case, .zbereinthe 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 r8aBOGof 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.