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                         October 9, 1950

    Hon. Robert S. Calve&
    Comptroller of Public Accounts
    Austin, Texas~
                              Opinion No. V-1113.
                                 Re:   Legality of drawing war-
                                       rant for refund of money
                                       paid into State Employee
                                       Retirement System by a
                                       former State employee
    _f                                 who has been convicted of
                                       obtaining State funds by
                                       filing false tax refund
                                       claims.
     Dear Mr. Calvert:
               You request an opinion of this office concern-
     ing the refund of accumulations paid into the State Rm-
     ployeesI Retirement Fund and state the following facts
    fin your opinion request:
              "Raymond M. Ranks, a former employee of
         this department, has recently been convicted
         In the District Court, Travis County, Texas,
         and sentenced to a term in the state peniten-
         tiary upon the charge of filing false claims
         for refund of the motor fuel tax.
               "An audit of this department shows that
          Raymond M. Hanks obtained from such false
         .claims filed in this department approximately
          $38,000.00.  None of this $38 000.00 has been
          repaid to the State by Raymonr3M. Hanks.
               "Raymond M. Ranks was an employee of this
          department for approximately 17 years and was
          an employee at the time the State Employee's
          Retirement System became effective. He was a
          member of the retirement system endhas paidinto
          such system a sum of $300.00. He has accumu-
          lated a sum of 15 years prior service into the
          retirement system.
.   _                                                             .    ,




        Hon. Robert S. Calve& - Page 2   (V-1113)


                 "This departmenthas received a claim
            signed by Raymond M. Hanks for the amount
            of money he has paid Into {he retirement
            system, requesting that we issue warrant pay-
            able to Raymond M. Hanks for the amount he
            has actually paid into the retirement system.
            Raymond M. Hanks terminatedhis employment
            with this department 18 months ago and has
            not been an employee of the retirement system
            since."
                  The,question to be answered, based upon these
        facts IS whether you are authorized to issue a warrant
        payable to the above-named former employee for his con-
        tribution to the Employees' Retirement System.
                 Article 4350, Vernon's Civil Statutes, pro-
        vides:
                  'No warrant shall be issued to any person
             indebted to the State, or to his agent or as-
             signee, until such debt is paid."
                  It is well settled that the unlawful taking
        of money or other thing of value creates a debt recover-
        able in a civil action as well as a criminal liability to
        the State for the unlawful taking. m          ake ;35 S.W.
708 (Tex.Clv.App.1896); Downs v. Citv of Baltimore 111 Md.
674, 76 A. 861 (1910). Thus the claimant In thls'case is
        indebted to the State of Texas for the amount of money he
        received by virtue of his false claims, for which offense
        he was duly convicted. The civil action, however, is not
        dependent upon the criminal convictionbut is based solely
        y;goje unlawful taking. Annotation 41 L.R.A. (N.S.) 255

                  Since Hanks is indebted to the State, under the
        clear mandate of Article 4350 you are not authorized to is-
        sue a warrant to the claimant so long as his debt to the
        State is outstanding.
                  It is true, as you state In your opinion request,
        that Section 9 of Article 622&, Vernon’s Civil Statutes,
        the Texas Employees’ Retirement Act, provides that “the
        right of a person . . o to the return of contributions,..0
        and the moneys In the various funds created by this act, are
        hereby exempt from any State or municipal tax, and exempt
    Hon. Robert S. Calvert - Page 3    (V-1113)


    from levy and sale, garnishment,attachment, or any other
    process whatsoever." We are precluded from a considera-
    tion of this provision since the prohibition of Article
    4350 against the issuance of a warrant attaches prior to
    any legal process on the part of the State to recover the
    contributions. Whether the funds would be subject to at-
    tachment or any other process does not concern the lssu-
    ante of a warrant in the first instance. Since the Legis-
    lature has manifested the intent that no such warrant shall
    be issued, this involves no process such as levy or attach-
    ment. Nor does Section 9 affect the outstanding debt; it
    remains in-existence even though funds normally available
    to satisfy the indebtednessare not subject to levy, gar-
    nishment, or attachment.
              It is therefore our opinion that you may not ls-
    sue a warrant to Hanks so long as he remains Indebted to
    the State of Texas.
                             SUMMARY
              Article 4350, V.C.S., prohibits the is-
         suance of a State warrant for.the purpose of
         paying the amount of accumulated contributions
         standing to the credit of a former State em-
         ployee in the Employees' Saving Fund (Art. 6228a,
         V.C.S.) when such former employee is indebted
         to the State as a result of the embezzlement of
i        State funds.
                               Yours very truly,
    APPROVED:                    PRICE DANIRL
                               Attorney General
    C. K. Richards
    Trial and Appellate
    Division
                               By &YyLL+-i
    Charles D. Mathews           E. Jacobson
    First Assistant                 Assistant
    EJ:wb