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