Untitled Texas Attorney General Opinion

E ,kTTORNEY GENERAL OF %%CXAS Honorable Ned Price, Chairman Industrial Accident Board Walton Building Austin, Texas Opinion No. WW-623 Re: Does the Industrial Accident Board have the authority to pay necessary court costs in defense of the Second Injury Fund created by Sec. 120-2, Article 8306, Vernon's Revised Civil Statutes, and may the Comptroller Issue warrants for the Dear Judge Price: payment of such costs? We have received your letter of April 22, 1959, in which you request our opinion on the following ques- tion: "Does the Industrial Accident Board have the authority to pay necessary court costs in defense of the Seoond Injury Fund created by Section 120-2, Article 8306, Vernon's R.C.S., and may the Comp- tro!.l.er issue warrants for payment of such costs?” Section 120-2(a), Article 8306, Vernon's Civil Statutes, providing for the Second Injury F'und,reads as follows: "In every case of the death of an employee under this Act where there Is no person entitled to compensation sur- viving said employee, the association shall pay to the Industrial Accident Board the sum of Three Thousand Dollars, ($zkOC$),k; be deposited with the Treas- State for the benefit of said Honorable Ned Price, ChaIRnan, page 2 (~~-623) Fund and the Board shall direct the dlstrlbutlon thereof." (Dnphasls added) Attorney General's Opinion ~-1261 to Honorable Sea. Ii.Sheppard, Comptroller of Public Accounts, dated June 10, 1948, reads In part as follows: "The 'Second-Injury Fund' is clearly a trust fund and should be deposited in the Trust Section of the State Treasury. It may be dls- bursed without specific approprla- tion as it does not come within the constltutlonaI provision (Sea. 6, Art. 8, Const. of Texas) which pro- vides that Ino money shall be drawn from the Treasury but In pursuance of specific appropriations made by law; nor shall any appropriation of money be made for a longer term than two years."' Since the Second Injury Fund Is a trust fund for the use and benefit of those employees entitled to com- pensation therefrom, we are of the opinion that the members of the Board must fulfill the function of the Trustees of such fund In directing "the distribution thereof" as well as defending the fund Itself from un- warranted raids by Improper claimants. The Supreme Court of Texas, on June 28, 1950, In Cause No. A-2642, entered judgment ln the case of Mlears v. Industrial Acaident Board, 149 Tex. 270, 232 S.-d) b71, and ordered th t the costs there Involved should be paid from this fund? "It Is further ordered that the Petitioner, F. M. Miears, do have and recover of and from the Second Injury Fund administered by the Industrial Accident Board of the State of Texas all coats in this behalf expended in this Court and the Court of Civil Appeals and this decision be certified to the Mstriat Court for observance.* Honorable Ned Price, Chairman, Page 3 (wW-623) In so doing, the court has established that payment of court costs was a necessary incident to the trustees' protection of the fund, and, therefore, was a proper use of the funds there deposited. The Supreme Court has said that court costs should be paid from this fund. To our mind, the question has been resolved, and the question is now settled law, You are advised that it Is the duty of the Indus- ' trial Accident Board to pay court costs incurred In de- fense of the Second Injury Fund from such fund, and is the duty of the Comptroller to issue warrants in payment thereof. SUMMARY It is the duty of the Indus- trial Accident Board to pay court costs incurred In de- fense of the Second Injury Fund from such fund, and it is the duty of the Comptrol- ler to Issue warrants in payment thereof. Yours very truly, WILL WILSON TIM:zt:rrr APPROVED: OPINION COMMITTEE Geo. P. Blackburn, Chairman L. P. Lollar Leonard Passmore Joe Allen Osborn James Daniel McKeithan REVIEWED FOR THE ATTORNEY GENERAL BY: W. V. Geppert