Honorable Bascom Glles
Commissioner, General Land Office
Austin, Texas
Dear Sir: OpinFon No. C;lq77
Re: The proper method of handli,ng
special trust fund under H.B.
9, 46th Le,glslature,Regular
Session.
You have requested the opinion of this department upon
the proper method of handling by your office of the deposits
required.to be made under the provisions of R.B. 9, 46th Leg-
islature, by vacancy applicants.
We quote from your letter as follows:
'The practice has, heretofore, been to re-
quire deposits on all vacancy'appllcations filed
by 'applicants' In compliance with the above
provisions and the other portions of House Bill
No. 9 and the sums thus received have been placed
_ ln a special account in the Capital National Bank,
Austin, Texas, designated as 'Bascom Giles, Trus-
tee.' From,thls account the disbursements are
made, as required under provlsfons of House Bill
No. 9 and, as a record of same, there is main-
tained a voucher record and journal showing the
dlstributlon of the account for each separate
application.
"In thus construing House Bill No. 9 and in
handling this trust fund in the manner s&out
above, this office was in some measure guided by
an opinion rendered the Land,Commissioner by the
Attorney General's Department under date of April
9, 1930, signed by the Honorable W. W. Caves,
Assistant Attorney General. This opinion related
to the $1.00 required by Article 5413, Revised
Civil Statutes of 1925, to be deposited by each
applicant for patent and to be paid through tbls
office to county clerks as patent recording fee.
"This office would appreciate the benefit of
Ronorable Bascom Giles, page 2 o-1977
your opinion on the proper mode of handling
this special trust fund under the terms of said
House Bill No. 9 and whether or not the proced-
ure now employed Is correct or whether such de-
posits, when received, should be transmttted
to the State Treasurer under terms and provl-
sions of Senate Bill No. 48 enacted by the 41st
Legislature as amending Article 4343 of the
Revised Civil Statutes of 1925."
The particular deposit about which you inquire in
your oplnlon request Is provided for in subsection (c) of sec-
tion 1 of R. B. 9 in the following language:
"The Commissioner shall notify the applicant
by letter of the estimate of the cost of pro-
ceedings under the application, and, within thirty
(30) days after the date of such letter, the appli-
cant shall make a deposit with the Commlssloner to
cov~ercosts of all work which may be necessary In
order to comply with the request contafned in such
application. Upon failure to make the deposit as
required, all rights under the application shall
be lost. In the event such deposit shall prove to
be insufficient, the applicant shall be requested
by letter to make a further deposit of a sum to be
fixed by the Commissioner and, 1f such additional
deposit be not made withln thirty (30) days after
the date of such letter, the work shall be dis-
continued and the application cancelled, and such
cancellation shall be so endorsed on the applica-
tion. .Upon cancellation, the right to purchase or
lease under such application shall be lost. The
deposits provided for in this Section shall be a
special trust fund to be used only for the purpose
authorized by this Act. Provided that the appll-
cant shall have the right of appeal from the esti-
mate of cost so made by the Commissioner, to the
District Court of Travis County by giving notice
to the Commissioner in writing thereof within
fifteen (15) days after'the receipt of said esti-
mate from said Commisstoner as herein provided.
And provided that said applicant shall have fifteen
(15) days after the decision of said District
Court as to amount In which to make payment thereof.."
Evidently, the reference contained in your letter to
S.B. No. 48 of the &l&Legislature, as amending Article 4343
of the Revised Civil Statutes of 1925, Is erroneous. S.B. No.
48 of the 41st Legislature is an amendment to Article 377, and
. -
EionorableBascom Giles, page 3 o-1977
has reference to what shall be contained in the charters of
banking corporations. It seems apparent that you intended
to refer to H. B. 493 ch. 242, Acts of 1931, which is an
amendment to Article 4388 and other Articles. Article 4388,
as amended by ch. 242, Acts of 1931, provides 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 re-
mitting money the status of which is undetermined.
or whFch is awaiting the time when it can
finally be taken Into the Treasury, together
with the actual remittances whfch the Treasurer
shall cash and ~place in his vaults or Ln legally
authorized depository banks, If the necessity arises.
The report from the General Land Office shall in-~
elude all money for interest, principal and the
leases of school, un~lversltg,asylum and other lands.
A deposit receipt shall be issued by the Comp-
troller for the daily total of such remittances
from each department; and the cashier of the
Treasurer's Department shall keep a cash book,
to be called 'suspense cash book,' In which to
enter these d,epositreceipts, and any others
issued for cash received for which no deposit
warrants can be Issued, or when their issuance
is delayed. As soon 8s the status of money so
placed with the Treasurer on a deposit receipt
is determined, It shall be transferred from the
suspense account by placing the portion of it
belonging to the State In the Treasury by the ls-
suance of a deposit warrant, and the part found
not to belong to the State shall be refunded.
When deposit warrants are Issued, they shall be
entered in this cash book, as well as any refunds,
and the balance shall represent the aggregate
of the items still in suspense. Refunds shall bye
made in a manner similar to that in present use,
except that separate series of warrants shall be
used for making such refunds, to be called Ire-
fund warrants,' and. such warrants shall be written
and signed by the Comptroller and countersigned
by the Treasurer and charged against the suspense
funds to which they apply. Such warrants shall
then be returned to the Comptroller and dellver-
ed by him to the persons entitled to receive them."
It is our opinion that the special trust find provided
for in H. B. 9, which consists of deposits made by an applicant
- -
Honorable Bascom Giles, page 4 o-1977
to &over the costs of the work which may be necessary Fn order
to comply with 8 vacancy applFcant's request for a surve ati
hearing, is not subject to~the provIsIons of Article 438 8 as
amended In 1931. Nor do we believe that such trust fund 1s
required tb be paid over to or handled by the State Treasurer
in any manner. The equitable title to such fund remains In
the vacancy applicant, and such money is only authorized to be
used by the Commissioner as trustee for the particular pur-
poses authorized by H. B. 9. It is further provided in H. B.
9 that the Commissioner shall render a complete statement.to
the applFcant and shall pay over the unused balance of the
money to the applicant as soon as the total expense properly
chargeable against the deposit has been determined.
These provisions seem clearly to provide that the
fund.in question is to be administered by the.Comm1ssioner as
trustee for the purposes specified by H. B. 9, and that the
Commlssloner land not the State Treasurer is charged with re-
taFning custody of said money and of returning any unused
balance to the applicant when the ccsts chargeable to the fund
have been paid.
Accordingly, it Is our oplnlon that the method you
have been employing In the handling of these funds Is proper
and lawful,.and that you are not required or authorized to
pay over such sums to'the State TreasureF, under the terms
of any statute.
Very truly yours
: ATTORNEY GENEZAL OF TEXAS
By s/Robt. E. Kepke
Robt. E. Kepke
Assistant
REK:RS:wc
APPROVED MAR 28, 1940
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/%iB Chairman