February Il. 1974
The Honorable Robert S. Calvert Opinion No. H- 224
Comptroller of Public Accounts
State ‘Finance Building Re: Whether taxes received under
Austin, Texas Article 666-20d (Mixed Beverage
Tax) are in the State Treasury or
are held in trust for counties and
cities.
Dear Mr. Calvert:
You have requested our opinion concerning whether taxes received under
Article 666-20d (Mixed Beverage Tax) are in the State Treasury or are held
trust for counties and cities. Section (b) of Article 666-20d Penal Auxiliary
Laws (Texas Liquor Control Act) levys a ten percent gross receipts tax on
the sales and other transactions of mixed beverage permit,tees and other
specified licensees.
Sect,ion (e)(l) provides that the tax be paid to the Alcoholic Beverage
Commission and that “The Commission shall deposit these receipts in the
State Treasury to the credit of a special clearance fund to be known as the
Ivfixed Beverage ‘I& Clearance Fund. ”
Section (e)( 3) provides:
“As soon as possible after receipt of each
quarterl,y report: of the Commission the Compt:roller
shall issue to each county a warrant drawn on the Mixed
Beverage Tax Clearance Fund in the amount of fifteen
percent (15%) of receipts from permittees within the
county during the quarter, and shall issue to each incor-
porated city or town a warrant dra\vn on that fund in
the amount of fifteen percent (15%) of receipts from
permitteas within the incorporated city or town during
the quarter, as shown by the Commission’s report.
The remainder of the receipts for the quarter shall be
transferred to the General Revenue Fund. ‘I
p. 1045
The Honorable R,obert s. Calvert. page 2 (H-224)
We believe that these stat.utor,y provis,ions manifest a clear legislative
intent to assign the funds’ to a trust account to be distri~buted by the Comptroller
in accordance with statut:ory dir:ec.tions and kthout furt.her appropriations.
A “clearance fund” in Lus,ine,ss tc;rms is an a.ccount used for th,e “adjustment
of debits and credits” (Webster’ s New World Dict:,ionary,
-_-,.---_-_,--_I__ Library and Office
Edition, 1973) ,which denotes the absence of ownership in the hol.der of the
account; moreover, the directions to th,e Comptroller to first issue a warrant
of fifteenperce,nr to the c,ities and counties and then to transfer the remainder
to t.he general revenue fund, which o’bviously implies that the money was not
previously in the genera.1 revenue fund, support our belief. However, the
statute does place the funds “in the St:ate Treasur,y. ” and ordinarily this
requires furt.her appropriation. See Attorney General Opinions H-138 (1973).
H-154 (1973).
Your second question, concerning the effect of $ 26, Article V, of
House Bill 139 (the Appropr,iati,ms Act, 1973) resolves the situation. Section
26 provides:
“REFONLIS 0% .DE.PGSI’I’S. Any money deposited
knto the State Treasury which is subject to refund as
provided by law shall Lt refunded from the fund
into which such moneys was deposited, and so much
as is necessary for said refunds ,is ‘here’by appro-
priated. ”
Although these funds are i:n the State Trea,sury, the cit.ies and counties
where the tax originated are owners t,o the extent of fifteen percent and are
ent,itled to ha,ve such amour&s refunded. We ho1.d that 5 26 accomplishes this
and that the monies are appropriated by this provision.
SU:tiMARY
-_---
F ii’teen perc.ent of the Mixed Drink Beverage
C?eara.nce Fund estn’blisilrd ‘LyeArtic1.e 666-20d (Texas
Liquor Control Act:) is owned by ci,ttirs and counties
where the tax originated a,nd t:he, Compt,roller shou1.d
p. 1046
The Honorable Robert S. Calvert, page 3 (H-2.24)
refund such amounts to the cities and counties under
5 26, Article V, of H. B. 139 (the Appropriations
Act, 1973).
Yours very truly,
Attorney General of Texas
Opinion Committee
p. 1047
Untitled Texas Attorney General Opinion
Combined Opinion