### THEATTORNEYGENERAL OF-XAS
GROVERSELLERS AUSTIN ~~.TExae

ATTOW- GENERAL

Honorable Geo. H. Sheppard Comptroller of Public Accounts Austin, Texas Dear Mr. Sheppard: Opinion No. 

### O-5907 Re: Whether or not the Comptroller of Public Accounts has anycontrol over the funds held in the State Treasury in

. trust under Article 548, Revised Civil Statutes. You propound for our opinion the following:

“Reference is madeto your Opinions Nos. 0-5800, O-5729, and 

### O-5721.The question has arisen in this department and in the,’ Treasury Department as towhether the Comptroller has anycontrol over the funds held in the Treasury in trust under Art. 540 of the Revised Civil Statutes of Texas.

“If the Treasurer in fact holds funds under Art. $40 in trust and which funds are not any part of the public funds in the State Treasury proper, then is this department required to issue warrants on aclaim for disbursement of such funds?” You are respectully advised that in the opinion of this department the Comptroller of Public Accounts is not required, nor is he permitted, to issue warrants onaclaim or claims for disbursement of trust funds heretofore deposited with the State Treasurer in pursuance ofArticle 

### 5'40 of the Revised Civil Statutes of 1925. Article 540 of the Revised Civil Statutes, 1925, with respect to the final settlement of the affairs of astate bank in ,voluntary dissolution, declares:

“The board of directors shall there,upon give notice to all depositors, creditors and stockholders of the adoption of such resolution by publication thereof once aweek in adaily or weekly newspaper for three months thereafter, andbyawritten or printed notice personally served upon or mailed to every depositor, creditor or stockholder of such corporation at his last knownresidence, postage fully paid. Within six months afterHonorable Geo. H. Sheppard .page 

### 2,O-5907

the filing of such certificate, the corporation shall pay all sumsdue depositors andcreditors whomthey can discover andwho claim the moneys due them; and upon the expiration of said six months, it shall be the duty of the corporation to makea statement from the books of said corporation, certified by the president and secretary, of the names of all depositors and creditors whohave not claimed or have not received the balances to their credit or due themrespectively, and to file the same with the State Treasurer and to pay the said State Treasurer all such unclaimed deposits, moneys andcredits for the use and benefit of such depositors and creditors. The board of directors shall then divide the capital stock, guaranty and indemnity fund andall other assets or the proceeds thereof amongthe stockholders ratably; and the board of directors shall thereupon file in the office of the Banking Commissioner acertificate surrendering the corporate franchise.” TheArticle has been repealed by the enactment of the Texas Banking Code of 

### 1933,inArticle 15of Chapter VIII, as pointed out by this department inOpinion No. 0-5729, addressed toHonorable Jesse James, State Treasurer, in the following words:

“All unclaimed dividends and all funds hereafter available for non-claiming depositors andcreditors, together with all funds held pursuant to the provisions ofArticle 540 of the Revised Civil Statutes of Texas, (which latter funds shall be transmitted by the State Treasurer to the Commissioner, together with a list of the depositors andcreditors for whose benefit the same is held), shall be deposited by the Commissioner in one or more State banks for the benefit of the depositors and creditors entitled thereto.” Moneys thus deposited with the State Treasurer under Article 5’40 have never at any time been covered into the State Treasury, They have never been State funds. They have always been held in trust by the State Treasurer “for the use andbenefit of such depositors andcreditors ” for whomthe deposits were madeby the liquidating bank. In our opinion to the State Treasurer wespecifically advised:

“1. All of the funds mentioned byyou should be transmitted to the State Banking Commissioner.

“2. There should accompany this transmission la list of the depositors andcreditors for whose benefit the same is held’, and this list should of course include the respective amounts due to such depositors andcreditors, and likewise the bank making the deposit. The treasurer should not transmit to the Commissioner the records, ledgers, lists andcorrespondence pertaining to same, since they constitute apart of the per-Honorable Geo. H. Sheppard page 3, O-5907

manent archives of his office. Those lists transmitted to the Banking Commissioner should be certified under the hand and seal of the State Treasurer.

“3. The transmission by the State Treasurer to the Banking Cornmissiorer of the lists mentioned inAnswer 1relieves him of all future responsibility and liability in regard to the trust previously being administered byhim.” Since such deposits have never been in the Treasuryof the State, it is not required, nor is it proper, for the Comptroller of Public Accounts to issue warrants to the State Treasurer to pay them out of any funds in the Treasury. The holding of the Treasurer of such funds is, as wehave seen, onan express trust for private individuals, and such funds, therefore, should be disbursed by the trustee--the State Treasurer -- by paying the sameto the proper beneficiaries, or their order, either upon demandor after judicial determination of the claim or claims of such persons. The State Banking Code above quoted specifically transfers the trust to the State Banking Commissioner, upon precisely the sametrust as that inwhich it washeld by the State Treasurer. The status of such afund is very closely akin to, if not identical with, the Suspense FundAccount under Article 4364, Vernon’s Annotated Civil Statutes, with respect to which this departmentiin Op’Enion No. O-945, addressed to Honorable TomC. King, State Auditor andEfficiency Expert, advised:

“In Conference Opinion No. 3048, this department ruled that the above-quoted Article allowed the payment of anymoney into the Suspense Fundwhich is awaiting the time that the samecan finally be paid into the Treasury. It is the opinion of this deoartment that unhil the soecified fund towhich the money is properly belonging can be determined that the samecannot fimlly be taken into the Treasury. In such acase such money could be paid into the Suspense Fundeven though there was no question about the State’s right to keep said money. Ourconclusion, in this respect, is based upon ananalysis of the statutes which outline theauthority of the Comptroller of Public Accounts and of the State Treasurer in such a situation.” (Emphasis supplied) Trusting thht what wehave said sufficiently answers your inquiry, weare Very truly yours APPROVED

Mar8, 1944 Geo. P. Blackburn Acting Attorttey TTeneral of *xas ATTORNEY GENERAL

OFTEXAS

BY Ocie Speer

Assistant Approved Opinion Committee BYB’JJB, Chairman