THEATTORNEYGENERAL 

OF-XAS 

GROVER SELLERS 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 any control 

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 made to your Opinions Nos. 0-5800, O-5729, and 

O-5721. The question has arisen in this department and in the,’ 

Treasury Department as to whether the Comptroller has any control 

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 a claim 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 on a claim or claims for disbursement 

of trust funds heretofore deposited with the State Treasurer in 

pursuance of Article 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 a state 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 a week in a daily or 

weekly newspaper for three months thereafter, and by a written 

or printed notice personally served upon or mailed to every 

depositor, creditor or stockholder of such corporation at his 

last known residence, postage fully paid. Within six months after 
Honorable Geo. H. Sheppard .page 2, O-5907 

the filing of such certificate, the corporation shall pay all 

sums due depositors and creditors whom they can discover and who 

claim the moneys due them; and upon the expiration of said six 

months, it shall be the duty of the corporation to make a 

statement from the books of said corporation, certified by the 

president and secretary, of the names of all depositors and 

creditors who have not claimed or have not received the balances 

to their credit or due them respectively, and to file the same 

with the State Treasurer and to pay the said State Treasurer all 

such unclaimed deposits, moneys and credits for the use and 

benefit of such depositors and creditors. The board of directors 

shall then divide the capital stock, guaranty and indemnity fund 

and all other assets or the proceeds thereof among the stockholders ratably; and the board of directors shall thereupon file 

in the office of the Banking Commissioner a certificate surrendering the corporate franchise.” 

The Article has been repealed by the enactment of the Texas Banking Code of 1933, in Article 15 of Chapter VIII, as pointed out 

by this department in Opinion No. 0-5729, addressed to Honorable 

Jesse James, State Treasurer, in the following words: 

“All unclaimed dividends and all funds hereafter available for 

non-claiming depositors and creditors, together with all funds 

held pursuant to the provisions of Article 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 and creditors 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 and benefit of such 

depositors and creditors ” for whom the deposits were made by the 

liquidating bank. 

In our opinion to the State Treasurer we specifically advised: 

“1. All of the funds mentioned by you should be transmitted to 

the State Banking Commissioner. 

“2. There should accompany this transmission la list of the 

depositors and creditors for whose benefit the same is held’, 

and this list should of course include the respective amounts 

due to such depositors and creditors, and likewise the bank 

making the deposit. The treasurer should not transmit to the 

Commissioner the records, ledgers, lists and correspondence 

pertaining to same, since they constitute a part 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 in Answer 1 relieves him of 

all future responsibility and liability in regard to the trust 

previously being administered by him.” 

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 we have seen, on an express trust 

for private individuals, and such funds, therefore, should be 

disbursed by the trustee--the State Treasurer -- by paying the 

same to the proper beneficiaries, or their order, either upon 

demand or 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 same trust as that in which it was held by the State Treasurer. 

The status of such a fund is very closely akin to, if not identical 

with, the Suspense Fund Account under Article 4364, Vernon’s 

Annotated Civil Statutes, with respect to which this departmentiin 

Op’Enion No. O-945, addressed to Honorable Tom C. King, State 

Auditor and Efficiency Expert, advised: 

“In Conference Opinion No. 3048, this department ruled that the 

above-quoted Article allowed the payment of any money into the 

Suspense Fund which is awaiting the time that the same can 

finally be paid into the Treasury. It is the opinion of this 

deoartment that unhil the soecified fund to which the money is 

properly belonging can be determined that the same cannot fimlly 

be taken into the Treasury. In such a case such money could be 

paid into the Suspense Fund even though there was no question 

about the State’s right to keep said money. Our conclusion, in 

this respect, is based upon an analysis of the statutes which 

outline the authority of the Comptroller of Public Accounts and 

of the State Treasurer in such a situation.” (Emphasis supplied) 

Trusting thht what we have said sufficiently answers your inquiry, 

we are 

Very truly yours 

APPROVED Mar 8, 1944 

Geo. P. Blackburn 

Acting At torttey 

TTeneral of *xas 

ATTORNEY GENERAL OF TEXAS 

BY Ocie Speer 

Assistant 

Approved 

Opinion 

Committee 

BY B’JJB, 

Chairman