OFFICE OF THE AmORNEY GENERAL OF TEXAS AUSTIN

Honorable Tom C. Kj.ng State Auditor and EfficiencyExpert Austin, Texas

Dear Sir:

Your request for an concerning the proper con nonls AnnotatedCivil Sta four separateand distinc ew it, contains

map be paid int specif ioally 1 the State is e e about is whether undeterminedonly in * go into is unknown,
e problem arisesmore o questionbut that

AnnotatedCivil Statutes,

shall receive daily partment, each of whom with the duty of making list of all persons ree status of which is undeters awaiting the time when it can into the Treasur#, together al remittanc.es

which the Treasurer

. nd place in his.vaults or in legally eposltory banks, if the necessity arises. * * *n

Iu BonferenceOpinionNo. 3048, this department ruled that the above quotedArticle allowed the payment of any money into the Suspense Fund which la awaltlng the tine thatHonorable Tom C. sing, Page 2

the sane can finally be paid into the Treasury. It is the opinion of this departmentthat until the specific fund to which the money 1s properlybelonging can be determinedthat the same cannot finally be taken into the Treasury. In such
a case suchmoney could be paid Into the SuspenseFund even though therewas no questionabout the State's right to keep saidmoney. Our conclusion,in this respect, is based upon an analysisof the statutes which outline the authorityof the Comptrollerof Public Accounts and.of the State Treasurer in suoh a situation.

Article 4364,Vernon'sAnnotatedCivil Statutes, reads, in part, as follows:

WAccounts shallbe kept for funds, a separate account for each fund, which shall be creditedwith depositwarrants and charged with pay warrants issued: Balances of such accounts shall representbalances in the funds after taking into conslderatlonall warrants issued. Accounts shall also be kept showing the bonds or securitiesowned by each fund.

n* * *

"SUSPENSF,

LEDGER.-A suspenseledger shall be kept in which the accounts of the State Treasurer shall be stated in respect to moneys held by him pending the issuance of deposit ‘warrantsand moneys and securitiesheld other than those for State purposes, for all which’ the Comptrollershall issue deposlt receipts, posting the same to this ledger. It shall also include the accountswith heads of departmentsfor allmoneys receivedby them and depositedwith the State Treasurer In suspense.n
Article 4381,Vernon's AnnotatedClvll Statutes, reads','ln

part, as follows:

"The State Trearurer shall cause the dally totals of depositwarrents to be posted to the proper fund and controlaccounts in the general ledger; The Treasurer shall keep a 'transit record,' in which he shall record the essentialHonorable Tom C. King, Page 3

details of all cash, checks,money orders, draft6 or other items deposited or cashed eaoh day, showing the items deposited in each depositorybank or otherwise disposed of. The totals of deposits shall be charged to the aocounts of the respective depositories
on the books of the Treasury * * **

The reading of the above quoted Article clearly indicates that the procedure for flncl payment lntoS;t; fiat6 Treasury Is by the issuance of a deposit warrant. posit warrant 1s lssued.to the partlcplar fund to which the money goes. It 1s true, then, that until the fund to which the money shouldgo Is determined the deposit warrant.to that fund cannot be issuedfor suohmoney. For this reason, it is our opinion that in a case where money is paid to one of the departments of the State, and there 1s a question as to which partlcular fund saidmoney should go, the same may properlybe paid into the SuspenseFund because said money cannot be placed into the proper fund until a depositwarrant for such money is drawn. Only then is themoney paid into the Treasury. While the partlcular destinationof the fund Is ln..questlon, even thoughthere is no questionas to the State's right to the money, we feel that the money comeswithin the catagory of "moneywhich is awaiting the timewhen it oan finally be taken into the Treasury" as set out in Article 4388. YOU are, therefore,advised that in cases where there is an actual doubt as to the particular fund to which
a money shouldgo saidmoney may properly be placed ln.the Suspense Fund by the head of a department.

Your second problem deals with which public official has the power*todeterminewhich money shallbe placed in the SuspenseAccount. You are advised that Article 4388 provides that the head of each department shall make a report containing
a detailed list of an persons remittingmoney the status of which is undeterminedor whloh is awaiting the time when it can finallybe taken into the Treasury. The statute further speolflcallyprovides that the head of each department is speolflcally chargedwith the duty of making such a*llst dally. It la the opinionof this department,therefore, that the head of each departmenthas the power to place money into the SuspenseAccountwhen the same 1s awaiting the time when it can finally be taken into the Treasury. Record of such payment 1s of course made by the Comptrollerin the suspense ledger as provided in the above quotationof Article 4Z64.’

Honorable Tom C. King, Page 4

Your third problem deals with a situationwhere it 1s determinedthat part of the money shouldbe returned to a taxpayer and the other part 1s to be kept bg the State. However, the money which belongs to the State 1s money which la awaltlng the timewhen it can finally be taken into the Treasury. You ask whether the part that 1s to be returned to the taxpayer map be so returned prior to the time the rest of themoney Is paid into the State Treasuryby the issuance of a deposlt’warrant. You are advised that in such a case the status of the money whloh is to be returned to the taxpayer 1s definitely determinedand the samemay be returned to him. As to the money which la oomlng to the State, the same may be properly kept in the SuspenseFund until it can finallybe taken lnto the Treasury. It is the opinion of this department,therefore,’ that in such a case as outlined, the money which is to be returned to the taxpayermay be so returnedprior to the time the remainderof themoney which cannotbe finally taken into the Treasury is taken out of the SuspenseFund.

Your iourth question Is whether a speclflopayment placed in the SuspenseFund must be separatelyearmarkedand kept as a separateaocount therein. The procedureror the payment of money into the SuspenseFund is outlined in Article 4388. Themoney is paid into the SuspenseFund and a deposit reoelpt is issuedby the Comptrollerfor the dally total of. such remittancesfrom each department. Article 4364, supra, provides that tfie Comptroller shall keep an account ln.the suspense ledger of the moneys held by him pending the issuance of depositwarrants. You are advised that when the paJrm$nts
are made into the SuspenseFund as a matter of accountingthe
same shouldbe kept separately. The purpose of the Suspense Statutes 1s to provide a method wherebymoney may be paid to the State which will not be paid into the State Treasury until it is finally determinedtb whom the money belongs,pr until a time when the samemay be finally paid into the State Treasury. The SuspenseFund servea a6 a sort of a depository. If money is pald into the Suspense Accounty by a taxpayer and the same 1s erroneouslyplaced ln the general fund, payment could not be made to him from the Suspense Fund. To do so would be to pay him money which someone else had placed in eald fund or money which had not as yet been placed in the State Treasury. This departmentso ruled In~OplnlonNo. O-44, a 00~7 ot which is hereby attached, You are, therefore,advised that a separate account shouldbe kept of each pagment placed in the Suspense Fund by the Comptroller.Honorable Toa C. King, Page 5

Ne truet that the above discussionof Artlole 4380 will satlsfaotorilyanswer your inquiry.
Your6 very truly



# 2f ’ r’I

Billie Goldberg -I Aesistant

BG:RS

AFFROVE72J~15, 1940