THEA~ORNEY GENERAL
~FTEXAS
A1TOxsNSY DkJxwsHAl.
November 30, 1959
Mr. John C. White, Commissioner
Texas Department of Agriculture
Capitol Station
Austin, Texas
Opinion No. WW-749
Re: Whether the Texas Depart-
ment of Agriculture may
make refunds from the Spe-
cial Department of Agrlcul-
ture Fund under provisions
of House Bill 4, 3rd Called
Dear Mr. White: Session, 56th Legislature.
The following is quoted from your recent letter:
"With reference to H.B. 4, 3rd Called
Session of the 56th Texas Legislature, we
have requested and attached in rider form a
paragraph enabling this Department to omit
the use of the Suspense Fund by allowing
refunds from the fund in which the revenue
was deposited. This rider reads as follows:
"'Any money deposited into the State
Treasury by the Department of Agriculture
either by mistake of fact, mistake of law,
in event of overpayment by the remitter, or
by any other reason which necessitates a re-
fund shall be refunded by warrant issued
against the fund in the State Treasury into
which such money was deposited and so much
for said refunds as is necessary is hereby
appropriated.'
"The Comptroller of Public Accounts
has stated that they will not honor this
rider as there is not basic authority on
which to set up the appropriation. In ana-
lyzing some of our orlgl~nalfunds, we find
that there are definite authorities to issue
Mr. John C. White, page 2 (WW-749)
refund warrants from the State Treasury
and charge to the fund in which it was de-
posited. This however does not cover all
of the funds which we have accumulated in-
to one basic operating fund known as the
Special Department of Agriculture Fund.
"In order to determine our legality
in requesting and operating from such a
rider, we request your opinion as to whether
or not we may make such refunds from our I!.
special fund."
While there is no apparent conflict between the
statute establishing the Departmental Suspense Account
and the above rider, you have indicated that the rider
was obtained in order to omit the 'useof the Suspense
Fund+ Hence, we observe that the Departmental Suspense
Account has been established by general legislation,
Article 4388, Vernon's Civil Statutes, which the above
rider is powerless to amend or repeal. A rider attached
to an appropriation bill cannot amend or repeal an exist-
ing general law. State v. Steele, 57 Tex. 200 (1882),
Linden v. Finley, 92 Tex. 451, 49 S.W. 578 1899 ; Moore
v. Sheppard, 144 Tex. 537, 192 S.W. 2d 559 I1946I; At-
torney General's Opinions V-412 (1947); V-1304 (1951).
Article 4388, Vernon's Civil Statutes provides in
part as follows:
"The State Treasurer shall receive
daily from the head of each Department, each
of whom is specifically charged with the duty
of making same daily, a detailed list of all
persons remitting money the status of which
is undetermined or which is awaiting the time
when it can finally be taken into the Treasury,
together with the actual remittances which the
Treasurer shall cash and place in his vaults or
in legally authorized depository banks, if the
necessity arises. . . . As soon as the status
of money so placed with the Treasurer on a de-
posit receipt is determined, it shall be trans-
ferred from the suspense account by placing the
portion of it belonging to the State in the
Treasury by the issuance of a deposit warrant, and
the part found not to belong to the State shall be
refunded. . . .'
Mr. John C. White, page 3 (Wh-749)
Therefore, moneys "the status of which is undeter-
mined or Which are awaitlng,,thetime when they can finally
be taken into the Treasury, must still be kept inthe'
Departmental Suspense Account regardless of the above
rider.
Turning now to the question of pre-existing law,
Secticn 44 of Article III of the Texas Constitution pro-
hibits the Legislature from granting "any money out of
the Treasury of the State . . . on a claim . . . when the
same shall not have been provided for by pre-existing law."
Article 4386c, Vernon's Civil Statutes, provides in
part as follows:
'Section 1. All moneys now on de-
posit in the State Treasury to the credit
of the Citrus Fruit Inspection Fund, the
Pure Bred Cottonseed Inspection Fund, and
2-4-D License Fund, the Herbicide Fund, the
Texas Vegetable Certification Fund, the Seed
Laboratory Fee Account, the Nursery Inspec-
tion Fee Account, the Weights and Measures Fee
Account, the Charter Filing Fee Account, the
Anti-freeze Registration Fee Acco,unt,the
Insecticide and Fungicide Fee Account, Fees
for Milk and Cream Tester Licenses, the State
Department of Agriculture Grain and Field Seed
Warehouse Inspection Fund, and the Texas Seed
Act Fund, together with all moneys owing or due
said Funds and Fee Accounts, shall be trans-
ferred, deposited, and consolidated into a
single Fund, in the State Treasury to be known
as the Special Department of dgriculture .Fund.
As amended Acts 1955, 54th Leg., p. 539, ch.
168, B 1.
"Sec. 2. All moneys collected or re-
ceived by the Texas Department of Agriculture,
after the effective date of this Act, from any
source now requiring that such moneys be de-
posited in the State Treasury to the credit of
any of the Funds or Fee Accounts named in Sec-
tion 1 of this Act, shall be deposited in the
State Treasury to the credit of the Special
Mr. John C. White, page 4 (WW-749)
Department of Agriculture Fund.
"Setv 3. The Special Department of
Agriculture Fund shall be used for the aggre-
gate purposes for which the Funds and Fee
Accounts named in Section 1 are now directed
by law to be used."
Since Sect-ion3 of the above statute provides that
the Special Department of Agriculture Fund shall be used
for the aggregate purposes for which the Funds and Fee
Accounts named in Section 1 of the Act are now directed
by law to be used, the various statutes establishing such
funds are looked to first in order to determine whether
there is pre-existing law in support of the rider.
The moneys paid into the funds in question are de-
rived from license and inspection fees. In none of the
statutes establishing such funds do we find specific au-
thority for refunds. These statutes direct that the funds
be used in the administration and enforcement of the par-
ticular Acts establishing each such fund.
However, Article 4836c, Vernon's Civil Statutes, au-
thorizes the funds transferred to the Special Department
of Pqriculture Fund to be 'used for the aggregate purposes
for wh-ich ;he Funds . . . are now directed by law to be
used." That Article does not say "directed by statute to
be used."
The term 'pre-existing law" does not necessarily mean
pre-exleting statutory law: a common-law right is a right
under pre-existing law. Austin National Bank v. Sheppard,
123 Tex. 272, 71 s.w. 2d 242 (1934).
It is the law of this State, founded upon common law
rights, that license fees and taxes paj.dto the State because
of (1) fraud or (2) mistake of fact or (3) duress may be re-
covered from the State, there being a legal and valid obli-
gation on the part of the State to pay such claims, although
the rule is to the contrary where such payments to the State
have been made due to a mrstake of law. Hoefling v. City of
San Antonio, 85 Tex. 228, 20 S.W. 85 (1882); N;ti;;a; Bis-
cuit Co. v. State, 134 Tex. 293, 135 S.W. 2d 68 ( 4 )
Austin National Bank v. Sheppard, supra; Ostrum v. Citi of
San Antonio, 71 S.W. 304 (Civ. App. 1902, error dism. w.o.j.1;
Mr. John C. White, page 5 (MA?-749)
32 Tex. Jur. 741, Payment, Sec. 55; Attorney General's
Opinions O-6974 (1945); O-6282 (1945);0-5739 (1944).
From the foregoing it is apparent that the above
quoted portion of House Bill 4 is supported by pre-exist-
ing law to the extent that it makes an appropriation to
refund moneys paid Iundermistake of fact. It is equally
clear that the approgrjation is not supPorted by pre-
existing law and is therefore unconstitutional to the
extent that it attempts to appropriate for refunds of
moneys paid under mere 'm?'stakeof law" unaccompanied by
the other circumstances which would authorize a refund.
Here we note that the "mistake of fact" which per-
mits a refund must be one on the part of the person who
made the init?al payment to the State rather than a mere
mistake on the part of the Department of Agriculture as
we find no pre-existing law making the State liable to its
agents for moneys paid to the agent by another and deposit-
ed in the State Treasury due to mistake on the part of the
agent only. The rider in questi'onis construed as refer-
r-ingto mistakes on the part of the initial payer.
In Attcrney General's Opinion o-6974 this Depart-
ment was called upon to decide whether the following ap-
propriatlon was supported by pre-existing law:
II. . . any money paid into the State
Treasury by the Board of Hairdressers and
Cosmetologists either by mistake of fact or
mistake of law, shall be refunded by warrant
issued against such fund in the State Treas-
ury, and so much of said fund as is neces-
sary is hereby appropriated for such purpose."
The provision was treated as applying to refunds for
err:neous ,paymentsmade by those who paid fees to the Board
rather than rne13e
m;stakes on the part of the Board in deposit-
fng ?~tscollections into the State Treasury.
Further, the opinion held that the appropriation was
supported by pre-existing law to the extent that it authoriz-
ed the issuance of warrants to pay claims for the refund of
moneys paid under fraud, mistake of fact or duress.
In the present situation "overpayment of the remitter"
is also made a ground for refund. It is apparent from the
Mr. John C. White, page 6 (WW-749)
authorities already cited that an appropriation for
refunds due to mere "overpayment by the remitter" IS
not supported by pre-existing law. There must be more.
The overpayment would have to be caused by fraud,
mistake of fact or duress in order to be refunded by
the State. To the extent that it is so caused, the ap-
propriation for refunds for "overpayment" is consti-
t ut ional. To the extent that the "overpayment" is not
So caused, the provrsion is not supported by pre-exist-
ing law and is unconstitutional.
The subject rider also purports to make an appro-
priation for refunds of moneys deposited into the State
Treasury,"by any other reason which necessitates a re-
fund". This phrase we construe as meaning any other
legal and valid ground for refund. As thus interpreted~
it is not in violation of Section 44, Article III of the
Texas Constitution. If an Act is fairly susceptible of
two constructions, one of which would render the Act
constitutional and the other of which would render it
unconstitutional, the former must prevail. 39 Tex. Jur.
207, Statutes, Sec. 111.
SUMMARY
The portion of House Bill 4, Acts
of the 56th Legislature, Third
Called Session, 1959, which makes
an appropriation for the refund
of moneys deposited into the State
Treasury "either by mistake of
fact, mistake of law, in the event
of overpayment by the remitter, or by
any other reason wnich necessitates
a refund cannot amend or repeal
Article 4388, Vernon's Cj~vilStatutes,
providing for the Departmental Sus-
pense Acco~unt. Said provision of
House B3.114 is supported by pre-
existing law to the extent that it
applies to refunds of money paid to
the State due to fraud, mistake of
. . .
Mr. John C. White, page 7 (WW-749)
fact or duress and is not support-
ed by p-e-existing law to the extent
that it attempts to do more.
Yours very truly,
WILL WILSON
Attorney General of Texas
~YD~~s~
Assistant
HGB:ms
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Gordon C. Cass
Jot Hodges, Jr.
Charles D. Cabaniss
John Reeves
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore