THE AITORNEY GENERAL
OF TEXAS
A~wrm, -A#3 r&711
October 11, 1968
Honorable Jesse James Opinion No. M-288
State Treasurer
Box X, Capitol Station Re: Payment of certain claims
Austin, Texas 78711 by the State Treasurer
against deposits made with
him as required by Chapter
X, Texas Probate Code,
being the residue of an
Dear Mr. James: estate for unknown heirs.
Your request for an opinion read,sas follows:
'On August 26, 1968, we received from Mr.
Pete Urbani, Jr., Attorney representing the
Estate OF Istvan Pista Meszaros, Deceased, a
court order setting out $4,011.70 as the
residue of this estate for unknown heirs to
be paid to the State Treasurer as required by
Chapter X, Probate Code. It was later found
that the court order did not Include additional
attorneys fees for $200.00 and $27.00 in court
costs. The application to pay claims shows
attorneys fees to be $400.00, corrected in ink and
initialed by,the Judge of the Probate Court.
We have now received a corrected court order
stating that the amount to be paid to the State
Treasurer in the original court order was in-
correct and that $200.00 is to be paid to the
attorney and $27.00 to the County Clerk, Galveston
County.
"We are enclosing photocopies of the in-
struments we have received and request your
written opinion as to whether the State Treas-
urer may pay these two claims. We would appre-
ciate your written opinion in this matter as
soon as possible."
,According to the instruments submitted with your re-
quest, on August 23, 1968, the court ordered payment to the
State Treasurer, ursuant to Chapter X of the Texas Probate
Code, the sum of P4,011.70 in Cause No. 30,601 in the matter
of the Estate of Istvan Pista Meszaros, Deceased.
11aoo-
Hon. Jesse James,page 2(M-288)
On September 23, 1968, the court in said cause entered
the following order:
"It being brought to the attention of this
Court in Chambers, that prior to the closing of
this Estate, the Court entered an Order for pay-
ment of attorney's fees in the amount of FOUR
HUNDRED AND NO/100 ($400.00) DOLLARS, and Court
costs in the amount of TWENTY AND NG/lOO ($20.00)
WLLARS, on the 21st day of August, A.D. 1968.
Subsequent thereto an Order dated the 23rd day
of August, A.D. 1968, was entered Ordering the
pa ent of FOUR THOUSAND ELEVEN AND 77/100
($rOII.77) DOLLARS to the STATE TREASURER,
Austin, Texas;
"And the Court being further informed that
only TWO HUNDRED AND NO/100 ($200.00) DOLLARS
was paid as attorney's fees and the Court costs
was erroneous and that In fact the Court costs
was FORTY-SEVEN AND NO/100 ($47.00) DOLLARS;
"It is Therefore ORDERED and DECREED that
the sum of FOUR THOUSAND ELEVEN AND 77/100
($&,011.77) DOLLARS paid to the STATE TREASURER
was paid in error and that the sum of THREE
THOUSAND SEVEN HUNDRED EIGHTY-FOUR AND 77/100
($3,784.77) DOLLARS should have been paid to
the STATE TREASURER; and
"It is ORDERED that the following pay-
ments should be made from the monies deposited
in the 'STATETREASURER, Austin, Texas, as
follows:
"1) Pete Urbani, Jr., Attorney at Law, $200,00
'2) Gertrude McKenna, County Clerk of
Galveston County, Texas, 27.00”
Section 427 of the Probate Code provides as
follows:
"When Estates to be Paid into State Treasury
"If any person entitled to a portion of an
estate, except a resident minor without a guardian,
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. .
Hon. Jesse James, page 3 (M-288,) ~~'
shall not demand his portion from the executor or
administrator within six months ,af'ter
an order of
court approving the report of commissioners of
partition, or within six months after the settlement
of the final account of an executor oradministrator,
as the case may be, the court by written order shall
require the executor or administrator to pay so much
of said portion as Is In money to the State Treasurer;
and such portions as is in other property he shall
order the executor or administrator to sell on ,such
terms as the court thinks best, and, when the proceeds
of such sale are collected,,the court shall order the
same to be paid to the State Treasurer, in all such
cases allowing the executor or,,administratorreasonable
compensation for his services.
The judgment dated September 23, 1968, reveals that
the Court also corrected the record by entering a new judgment.
Therefore, you are advised that you are authorized to nay the
sum of $200.00 to Pete Urbanl, Jr., Attorney at Law,and the sum
of $27.00 to Gertrude McKenna, County Clerk of Galveston County,
Texas, in accordance with the judgment entered September 23,
1968, In Cause No. 30601 provided that the money previously
received has not been deposited in the State Treasury. If
such money has been deposited in the State Treasury, you would
not be authorized to withdraw such money from the Treasury
until the legislature makes an appropriation for the reason
that Section 6 of Article VIII of the Constitution of Texas
provides that no money shall be drawn from the Treasury but in
pursuance of specific appropriations made by law, Pickle v.
Finley, 91 Tex. 484, 44 S.W. 480 (1898).
SUMMARY
The State Treasury is authorized to pay out
money in accordance with a corrected judgment
in order to rectify a previous erroneous judgment
provided monies received pursuant to the erroneous
judgment have not been deposited In the State
Treasury. If such monies have been deposited in
the State Treasury, payment may not be made until
the legislature makes an appropriation. Article
8, Section 6, Constitution of Texas.
s very truly,
5 m
C. MARTIN
ney General of Texas
Hon. Jesse James, page 4 (M-288)
Prepared by John Reeves
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, chairman
Kerns Taylor, Co-Chairman
Louis G. Neumann
Ray McGregor
James McCoy
Wardlow Lane
A. J. CARUBBI, JR.
Executive Assistant
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