Hon. Robert S. Calvert                      Opinion No. C-742
Comptroller of Public Accounts
Austin, Texas                                  Re:   Authority of the Comn-
                                                     troller to effect, by a
                                                     journal entry, a trans-
                                                     fer of monies from the
                                                     General Revenue Fund to
                                                     the Departmental Suspense
                                                     as a method of refunding
                                                     money erroneously deposited
                                                     in the Treasury to the Gen-
Dear Hon. Calvert:                                   era1 Revenue Fund.
           Your request for an opinion reads as follows:
          'I am in receipt of a demand from the Post
     Office Department for a refund of $Z5.OO to cover
     duplicate money order payments. The money current-
     ly is deposited to General Revenue.
          "My concern is the legal means that are avail-
     able to me for refunding such duplicate payments
     when using a statement of facts. Such statement
     includes:
            "Reference:
                       ORIGINAL MONEY ORDERS
    Order Number
        21 b       B
      :21?6$;ai

                       DUPLICATE MONEY ORDERS
      2217605787           lo.00     4-23-64                        z-g:-2;
      2217605788         ! 15.00     4-23-64                          -    -

            "The two duplicate Postal Money Orders, dated
     4-23-64, were deposited 5-26-66  to General Revenue
     Fund 1, Revenue Code 570,  in the amount of $25.00,
     Deposit Voucher Number l5lZl.
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                                          ,




Hon. Robert S. Calvert, page 2, (C-742)


          "The Comptroller's office held the duplicates
     pending receipt of information identifying the pur-
     pose of the payment. The deposit was eventually made
     as a 'conscience money' payment--unidentified.
          "On June 20, 1966, the Post Office Department
     wrote the State Treasurer citing the double payment
     and requesting refund of the $25.00. The Treasurer
     referred the matter to the Comptroller.
          llThequestion now arises, can the Comptroller
     effect by journal entry a transfer of $25.00 from
     'General Revenue Fund' to Departmental Suspense'
     to remedy a coding error? If such remedy is denied
     then by what means can restitution be made to the
     Post Office Department?"
          Section 6 of Article VIII of the Constitution of Texas
provides: "No money shall be drawn from the Treasury, but in
pursuance of specific appropriations made by law; . . . .'
          Money held in suspense does not go into the State Treas-
      Rogers v. Daniel Royal Oil Co., 130 Tex. 386, 110 S.W.2d
8uGf'@4 (1937). Therefore, a transfer from the General Fund
(which constitutes money in the State Treasury) to the Suspense
Account would constitute a withdrawal of money from the Treas-
ury . Since the money has 'beendeposited in the General Revenue
Fund, such money has passed beyond the control of the State
Treasurer and it is now impossible to remove such deposit with-
out an appropriation. Manion v. Lockhart, 131 Tex. 175, 114
S.W.Zd 216 (1938). In the Manion case, a question similar to
the one involved in your request was before the court, and in
construing the provisions of Section 6 of Article VIII of the
Constitution of Texas, the court stated at page 219:
          "It is shown that respondent, acting on the
     opinion rendered by the Attorney General, deposited
     this money in the general revenue fund of the state.
     Respondent has in no manner profited by such aCt&Qm
     on his part. He in good faith deposited such money
     in the general revenue fund, which now requires that
     it be appropriated by the Legislature in accordance
     with the provisions of section b of article 8 of the
    3Constitution.                           ave in his
     possession such funds, and, therefore, he is unable,
     without an act of the Legislature, to pay same to
     those entitled thereto. Having complied with the
     advice of the Attorney General, in making such trans-
     fer of funds, it would be both unjust and unfair to
                           -3580-
Hone Robert S. Calvert;page    3,   .(c-742)   ',


     undertake by writ of mandamus to compel the treas-
     urer to vav this amount of monev out of his ner-
     sonal funds. It was contrary to law for the-funds
     to be deposited in the'general revenue fund, as was
     done, but they have passed beyond the:control of the
     treasurer, and it is now impossible for the treas-
    purer to a
    posited with him." (Emphasis added)
          It is our opinion that the principle of law announced
in Manion v. Lockhart, supra, is applicable to the facts out-
lined in your reauest. Therefore, you are advised that the
Comptroller may not transfer, by journal entry, money deposited
in the General Fund to the Suspense Fund for the reason that the
same amounts to a withdrawal of money from the Treasury without
an appropriation and such action is prohibited by the provisions
of Section 6 of Article VIII of the Constitution of Texas.
          In answer to your second question, restitution to the
Post Office Department can only be made by the Legislature en-
acting an appropriation for the purpose of refunding such money
to the ,PostOffice Department.
                          SUMMARY
          In view of the provisions of Section 6 of
     Article VIII of the Constitution of Texas, monies
     erroneously deposited in the State Treasury cannot
     be withdrawn except in pursuance of specific appro-
     priations made by law.
                                       Yours very truly,
                                       WAGGONER CARR
                                       Attorney General of Texas



                                                        torney General

JR:mh
APPROVED:
OPINION COMMITTEE
w . 0. Shultz, Chairman
James McCoy
Malcolm Quick             .
                              -3581-
Hon. Robert S. Calvert, page 4, (C-742)


Ralph Rash
Gordon Cass
APPROVED FOR THZATTORNEY GENERAL
By: T. B. Wright




                             -3582-