Untitled Texas Attorney General Opinion

OFFICE OF THE AmORNEY GENERAL OF TEXAS AUSTIN Honorable Tom C. Kj.ng State Auditor and Efficiency Expert Austin, Texas Dear Sir: Your request for an concerning the proper con nonls Annotated Civil Sta ew it, contains four separate and distinc e about is whether undetermined only in * go into is unknown, map be paid int e problem arises more specifioally 1 o question but that the State is e Annotated Civil Statutes, shall receive daily partment, each of whom with the duty of making list of all persons re- e status of which is undeter- s awaiting the time when it can into the Treasur#, together al remittanc.es which the Treasurer . nd place in his.vaults or in legally eposltory banks, if the necessity arises. * * *n Iu Bonference Opinion No. 3048, this department ruled that the above quoted Article allowed the payment of any money into the Suspense Fund which la awaltlng the tine that Honorable Tom C. sing, Page 2 the sane can finally be paid into the Treasury. It is the opinion of this department that until the specific fund to which the money 1s properly belonging can be determined that the same cannot finally be taken into the Treasury. In such a case such money could be paid Into the Suspense Fund even though there was no question about the State's right to keep said money. Our conclusion, in this respect, is based upon an analysis of the statutes which outline the authority of the Comptroller of Public Accounts and.of the State Treasurer in suoh a situation. Article 4364, Vernon's Annotated Civil Statutes, reads, in part, as follows: WAccounts shall be kept for funds, a sep- arate account for each fund, which shall be credited with deposit warrants and charged with pay warrants issued: Balances of such accounts shall represent balances in the funds after taking into conslderatlon all warrants issued. Accounts shall also be kept showing the bonds or securities owned by each fund. n* * * "SUSPENSF,LEDGER.- A suspense ledger shall be kept in which the accounts of the State Treasurer shall be stated in respect to moneys held by him pending the issuance of deposit ‘warrants and moneys and securities held other than those for State purposes, for all which’ the Comptroller shall issue deposlt receipts, posting the same to this ledger. It shall also include the accounts with heads of de- partments for all moneys received by them and deposited with the State Treasurer In suspense.n Article 4381, Vernon's Annotated Clvll Statutes, reads','lnpart, as follows: "The State Trearurer shall cause the dally totals of deposit warrents to be posted to the proper fund and control accounts in the general ledger; The Treasurer shall keep a 'transit record,' in which he shall record the essential Honorable Tom C. King, Page 3 details of all cash, checks, money orders, draft6 or other items deposited or cashed eaoh day, showing the items deposited in each depository bank or otherwise disposed of. The totals of deposits shall be charged to the aocounts of the respective depositories on the books of the Treasury * * ** The reading of the above quoted Article clearly indicates that the procedure for flncl payment lntoS;t; fiat6 Treasury Is by the issuance of a deposit warrant. posit warrant 1s lssued.to the partlcplar fund to which the money goes. It 1s true, then, that until the fund to which the money should go Is determined the deposit warrant.to that fund cannot be issued for suoh money. For this reason, it is our opinion that in a case where money is paid to one of the depart- ments of the State, and there 1s a question as to which partlc- ular fund said money should go, the same may properly be paid into the Suspense Fund because said money cannot be placed into the proper fund until a deposit warrant for such money is drawn. Only then is the money paid into the Treasury. While the partlc- ular destination of the fund Is ln..questlon,even though there is no question as to the State's right to the money, we feel that the money comes within the catagory of "money which is awaiting the time when it oan finally be taken into the Treasury" as set out in Article 4388. YOU are, therefore, advised that in cases where there is an actual doubt as to the particular fund to which a money should go said money may properly be placed ln.the Sus- pense Fund by the head of a department. Your second problem deals with which public official has the power*to determine which money shall be placed in the Suspense Account. You are advised that Article 4388 provides that the head of each department shall make a report containing a detailed list of an persons remitting money the status of which is undetermined or whloh is awaiting the time when it can finally be taken into the Treasury. The statute further speo- lflcally provides that the head of each department is speolflcal- ly charged with the duty of making such a*llst dally. It la the opinion of this department, therefore, that the head of each department has the power to place money into the Suspense Ac- count when the same 1s awaiting the time when it can finally be taken into the Treasury. Record of such payment 1s of course made by the Comptroller in the suspense ledger as provided in the above quotation of Article 4Z64. ’ Honorable Tom C. King, Page 4 Your third problem deals with a situation where it 1s determined that part of the money should be returned to a tax- payer and the other part 1s to be kept bg the State. However, the money which belongs to the State 1s money which la awalt- lng the time when it can finally be taken into the Treasury. You ask whether the part that 1s to be returned to the taxpayer map be so returned prior to the time the rest of the money Is paid into the State Treasury by the issuance of a deposlt’war- rant. You are advised that in such a case the status of the money whloh is to be returned to the taxpayer 1s definitely determined and the same may be returned to him. As to the money which la oomlng to the State, the same may be properly kept in the Suspense Fund until it can finally be taken lnto the Treasury. It is the opinion of this department, therefore,’ that in such a case as outlined, the money which is to be re- turned to the taxpayer may be so returned prior to the time the remainder of the money which cannot be finally taken into the Treasury is taken out of the Suspense Fund. Your iourth question Is whether a speclflo payment placed in the Suspense Fund must be separately earmarked and kept as a separate aocount therein. The procedure ror the pay- ment of money into the Suspense Fund is outlined in Article 4388. The money is paid into the Suspense Fund and a deposit reoelpt is issued by the Comptroller for the dally total of. such remittances from each department. Article 4364, supra, provides that tfieComptroller shall keep an account ln.the suspense ledger of the moneys held by him pending the issuance of deposit warrants. You are advised that when the paJrm$nts are made into the Suspense Fund as a matter of accounting the same should be kept separately. The purpose of the Suspense Statutes 1s to provide a method whereby money may be paid to the State which will not be paid into the State Treasury until it is finally determined tb whom the money belongs, pr until a time when the same may be finally paid into the State Treasury. The Suspense Fund servea a6 a sort of a depository. If money is pald into the Suspense Accounty by a taxpayer and the same 1s erroneously placed ln the general fund, payment could not be made to him from the Suspense Fund. To do so would be to pay him money which someone else had placed in eald fund or money which had not as yet been placed in the State Treasury. This department so ruled In~Oplnlon No. O-44, a 00~7 ot which is hereby attached, You are, therefore, advised that a separate account should be kept of each pagment placed in the Suspense Fund by the Comptroller. Honorable Toa C. King, Page 5 Ne truet that the above discussion of Artlole 4380 will satlsfaotorily answer your inquiry. Your6 very truly 2f ’r ’I Billie Goldberg -I Aesistant BG:RS AFFROVE72J~ 15, 1940