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: