Untitled Texas Attorney General Opinion

November 18, 1947 Boa. Jep 3. Fuller Opinion No. V-434 county Attorney JCffCP8Or2 county RC: The manner fn which Beaumont, Texas Payment may be made to the city of Port ATTN: Mr. Joe S. Haida, Jr. Arthur of certain funds alleged to have been erroneously paid to the State Dear Sir: Your request POP an opinion dated September 12, 1947, is as follows: ‘you will recall my conversation with you recently regarding a Pequest of the At- torney General for a ruling on the question whether or not the State Treasurer, the St8te Comptroller and/or the Tax Collector o? Jefferson County has the authority to re- pay to the City of Port Arthur certain funds which have, through error9 been paid to the State. “I have particular reference to taxes remitted to the City of Port Arthur under authority of House Bill 410, Regular Session 49th Legislature, Ch. 353, P. 615 Vernons’ Texas Session Laws e A recent Audit has dis- closed that no taxes on intangibles have ever been remitted to the City, Contras to the Attorney GeneralIs Ruling (Opinion No. 0-7085, Feb. gth, 1946) on file in your office. Also there have been numberous instances where taxes on rerl estate have not been remitted by reason of various types of errors. In all of these fnstaWes”such taxes have be&m paid Into the State Treasury. “It Is the City’s contention that, since these taxes were granted to the City of Port Arthur under authority of the Above Legislatfve . . iIOn. JCp s. FUlleF - Page 2 (No, V-434) Act to perform a State Function, that is, the construction of Seawalls etc *, there’ should be requlred no further authority on behalf of any State or County offfcia1.s to pay the monies as directed by the Legislature, “We would very much appreciate your maklug this req,ueat on behalf of the City.’ I will fur- nish any additional brFeffng that you mtght con- s id er proper, ” We find it necessary to firat examine Opinion 0-7085, dated February 9, 1946, to determine ff it cor- rectly states then’law D Your opinion request states: “A recefit audit has disclosed that no taxes on intangibles have been remftted to the cfty contrary to the Attorney Qeneralps ~uIlng (Opinion O-7065, February gth, 1946) on file fn your office 0’p Our opinion has reference only to taxes assessed 8nd collected under the IntarPgibls Tax Ilw, Chapter 4, Title 122 (Apts 0 7105-7126) VX3. 8nd not to Lntrngibfes that msy be texed outside the scope of Chapter 4, ‘Title 122, such aa debts, stocks, bonds, etc., whfch wy have a t8X8blC sftus within Preefnot No, 2 8s distinguished from the County at 18Pge0 A ehreful study of this opfnion and an examfna- tion of tkm authori.%fes convinces us that ft is erroneous and must be overruled 9,nsofar aa it applies to t8xeS as- sessed and collected under the Sntangfble Tax Law.* Chapter as Tftle 122 P9C.S0 The followfug ruthoritfes make ft quite ckeer that Sntangfble taxes .under the Intangible Tax Law are apportioned to the county at large and wy not be apporticned to the respective polltfcal subdivisions of the County, as here, to the CL,ty of fart Arthur or Commis- sionergs Ppecim% NC- 2 0C Gefferson County. En the ce8e sf S?XI% vs PecffLc Ra~lwag Company, 62 3-w * 2d $1 {sup, C%Yj we fiAd this language : l’It is qwte tFue.q as contended by corm- se:, that in tke fntangible tax law, it pro- vj.fj&j ir, effec$, {Art, ,7X05) thst fntengfble assets may be taxed for state and coun_tg- we~,e, and it Is further true Ehat no provision f’n that law affotis legfslatfve authority for tte taxing of such assets for any other purpose 2~~~I-~.-I.x~~~. f,cr tkie benefF jd&on OF~aJpe~ : ROW J.p ~..~Ull@P 6 P8#0 3 (NO. V-4349 of the rolling rtoak vhfoh, under tbo provisions of Artibli var, fioa 8 of Cha Constitution 8ad Of kl%%ola 71 8” 9 Of ~ttlC 88&UtC, W8S 8ppOX’- tiowd bf Chb ltrte ColptPoller to Bl ?rso Couia- fyp the r%twl for taxltion pUPposes bdoama ifsted 18’tWt ~OUotj. The ~~SoU’UpOIl whfeh this con- clui~ion fr brdbd'are dubatmtirll~ the 88~8 a8 90 tbo 88aC oftoet 4s tha case of Bell Osuott *i. #8*8, 219 3.13. 556 (Cowt of civil Appealr~ Writ of Brror &8%8d), ft’ollVtlfob UO quote 88 follOV~x n 0 . D Artich 7414, Bevised St8tUtO8, pO- videa that ~6r)ah%uilvaj aoarpany 'ah811 pay io'la- XUJBl t8X t0 the ‘8t8tb q D o On ,thCfP iet8lI#%b1, 88BCt8, a a 0 ind 10081 taxes theaeon to the obua- ties in whiah it8 bU8fllCaa ia Caided 00.'~ Ott& plro’dsioru of the strtute provide for lpportionl~- intan&ble rrretr to the Countfeu, and hoWtlrr’8aWe shll'bs 1i8ted on th& t8X Polli of the do&~'4 'IO this vlse~, the IWtuto wker the ‘pie r8tr 6f’iaitazi- Seatio~ 1, HoUs BFPI 410, OPSSCd by the RC@l18P 5*811Oti Of the 49th LO&8l8tUPC Ch- 3'53, 9e 615 Of VCZ'OOXt'S 'E8X88 S888iOR tV8’ i8 ,b fO11OVlla %hat ooweaofng with the fiecrl Je8r begln- ning beptember 1, 19?!9, 8~d 8nd9nl: Au&xat 31, 1961, f there be and hereby 8PQ doarted lUd gP8sltad by the 3tatc of Tezrs to the 6i.t~ of Port Ad2wr, Texas, Ron; Jep S. Fuller - page 4 (No < V-434) Under the express terms of this bill the dons- tion of eight -ninths r&&h) of the State taxes Is “on all property both real and personal Lrr Commisrionrrs / Precinct No. 2 of Jefferson County, as existed one Zanuary 2, 1945.” Under the construction of the FntangFble tax law applied in the foregoLng authorities, intenaible assets do not constitute property~~~n Commissioners’ Precinct No. 2 of Jefferson County within the purview of sold Hi R. 410: It, therefore, follows thst, no part of the intangible taxes levied, assessed and apportioned to Jefferson County under the Intangible Tax Law are donated to said district as Opin- ion O-7085 erroneously holds ; to this extent it is express- ly overruled e This leaves only the question embraced In the fol- lowing part of your opinion request: “Also there have been numerous instances where taxes on real estate have not been remitted by reason of various types of errors, In all of these Instances such taxes have been paid into the State Treasury”. You state that aueh taxes have been paid into the State Treasury* The question arises, may they be withdrawn or paid out by the Treasury without a specific appropriation by the Legislature? We think Section 6 of Article VIII of the Constitution compels a negative answer, This article and section of the Const,itut.ion provides in part: “No money sh.aLl be drawn from the Treasury but 1n pursuence of spec?.fic appropriations made by 1swG I’ In the case of Manion VY- Lockhart, i 14 ? .i; 93 216, (Sup 1 Ct *), there> as here, the money was E:Jy<)‘lC O’QX i~‘f paid into the general Fund : In discussing the quest.ion the Court said E “It is shown that IJesponcient, acting on the opinfon rendered ‘oy the Attorney Genera1 9 deposited this money in the general revenue fund of the State, Respondent has fn no man- ner profited by such action on his part. He acted in good faith in depositing such money in the general revenue fund, wh%.ch now requires that It be appropriated by the Legislature in accordance with the provisions of Section b of Article VIII, of the Ccnstitutfon: Respondent mot now have in his poeses&?n such funds, rid, ti&ewere, La FB ImaMa, *fitmut an +Jt*s tha'.la~faktu#a, to pay aa- to thoaa ihtitlad '? Xt tr undUqwted that ralatoc t8 he )rld’ the bull; of uoar~ olalwl by hii& Zt: La lrdt bhoWt; 'however; that rilator cannot obf;rln t&s m006y due h$m by 8nothaP oemplata and ~ad~uatr~ , .' ..! t ftau am, tharefora, ~aapaaCfully,~dvised tkak‘a? ' part oi thr LIta Lble tax aollactad In Je~arsoj% aountj WY b. BPPort&O 8% to the city ai Portr.Azmilir or GoRri#sion- CPI ’ ?rectwt No. 2 oi’ arid Count). uadrr said Xousi’ Bill 410 a? the 49th Lagllllature. Nor a8y auab~~~taxesdonated ‘by, aaLl ~bLl1 00 @opavt having a’phfrioal sf.tus..in slid dfs- tri(lt, but amona- 3y paid into tha Itate Treasury to the cwdtt of the i3anaral Wevenue Fund, be rei’uaded to the dis- triat exoept br a)ioLf’io appropriation by the Legislature. Ho part of tha &ntangible taxer oolleot- ed by Jeffercran Oaunty upon lntahgible amets, as.provided ib tha ~ntaaglble Tax Law, may be apportioned to the CLty of Port Arthur or Corn- missioners 1 PreoZact No. 2 of said County under House Bill 410 of’ tha 49th Leg’fslature* Taxes therein donated arise only fro81 propapty liavfug a situs in the dlatriat, Intangible taxes are apportioned to the ooun%~ at lerge but not to any di&ri.ct of said county. Bell County v. . Pines 219 s;K. 556, state v. Paofffc .Reilwa;r coapany, 62 s-w, Z!d 81 (sup. Ct.)* . If taxes collected upon either real or personal property’locatsd fn the dfatS$at have erroneously been paid into the State Treasury ind credited to the General Fund, they may be refunded to the distriot’only by specific ap- : propriation made by the Legislsture. Section :- . Han, Jep S. Fuller - Page 6 (No. V-434) 6 of Article VIII, ConstitutLon of Texas; Manion vs. Lockhart, :I4 sow. 2d 216, (sup. ct.) Yours very truly ATTORNEYGENERALOF TEXAS LPL/lh APPROVED: