Untitled Texas Attorney General Opinion ( 1968 )


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  •             THE     AITORNEY                 GENERAL
    OF   TEXAS
    A~wrm,   -A#3          r&711
    October 11,   1968
    Honorable Jesse James                 Opinion No. M-288
    State Treasurer
    Box X, Capitol Station                Re:     Payment of certain claims
    Austin, Texas 78711                           by the State Treasurer
    against deposits made with
    him as required by Chapter
    X, Texas Probate Code,
    being the residue of an
    Dear Mr. James:                               estate for unknown heirs.
    Your request for an opinion read,sas follows:
    'On August 26, 1968, we received from Mr.
    Pete Urbani, Jr., Attorney representing the
    Estate OF Istvan Pista Meszaros, Deceased, a
    court order setting out $4,011.70 as the
    residue of this estate for unknown heirs to
    be paid to the State Treasurer as required by
    Chapter X, Probate Code. It was later found
    that the court order did not Include additional
    attorneys fees for $200.00 and $27.00 in court
    costs. The application to pay claims shows
    attorneys fees to be $400.00, corrected in ink and
    initialed by,the Judge of the Probate Court.
    We have now received a corrected court order
    stating that the amount to be paid to the State
    Treasurer in the original court order was in-
    correct and that $200.00 is to be paid to the
    attorney and $27.00 to the County Clerk, Galveston
    County.
    "We are enclosing photocopies of the in-
    struments we have received and request your
    written opinion as to whether the State Treas-
    urer may pay these two claims. We would appre-
    ciate your written opinion in this matter as
    soon as possible."
    ,According to the instruments submitted with your re-
    quest, on August 23, 1968, the court ordered payment to the
    State Treasurer, ursuant to Chapter X of the Texas Probate
    Code, the sum of P4,011.70 in Cause No. 30,601 in the matter
    of the Estate of Istvan Pista Meszaros, Deceased.
    11aoo-
    Hon. Jesse James,page 2(M-288)
    On September 23, 1968,         the court in said cause entered
    the following order:
    "It being brought to the attention of this
    Court in Chambers, that prior to the closing of
    this Estate, the Court entered an Order for pay-
    ment of attorney's fees in the amount of FOUR
    HUNDRED AND NO/100 ($400.00) DOLLARS, and Court
    costs in the amount of TWENTY AND NG/lOO ($20.00)
    WLLARS, on the 21st day of August, A.D. 1968.
    Subsequent thereto an Order dated the 23rd day
    of August, A.D. 1968, was entered Ordering the
    pa ent of FOUR THOUSAND ELEVEN AND 77/100
    ($rOII.77)       DOLLARS to the STATE TREASURER,
    Austin, Texas;
    "And the Court being further informed that
    only TWO HUNDRED AND NO/100 ($200.00) DOLLARS
    was paid as attorney's fees and the Court costs
    was erroneous and that In fact the Court costs
    was FORTY-SEVEN AND NO/100 ($47.00) DOLLARS;
    "It is Therefore ORDERED and DECREED that
    the sum of FOUR THOUSAND ELEVEN AND 77/100
    ($&,011.77) DOLLARS paid to the STATE TREASURER
    was paid in error and that the sum of THREE
    THOUSAND SEVEN HUNDRED EIGHTY-FOUR AND 77/100
    ($3,784.77)     DOLLARS should have been paid to
    the STATE TREASURER; and
    "It is ORDERED that the following pay-
    ments should be made from the monies deposited
    in the 'STATETREASURER, Austin, Texas, as
    follows:
    "1)   Pete Urbani, Jr., Attorney at Law,           $200,00
    '2)   Gertrude McKenna, County Clerk of
    Galveston County, Texas,                        27.00”
    Section 427 of the Probate Code provides as
    follows:
    "When Estates to be Paid into State Treasury
    "If any person entitled to a portion of an
    estate, except a resident minor without a guardian,
    -   1401-
    .      .
    Hon. Jesse James, page 3   (M-288,)        ~~'
    shall not demand his portion from the executor or
    administrator within six months ,af'ter
    an order of
    court approving the report of commissioners of
    partition, or within six months after the settlement
    of the final account of an executor oradministrator,
    as the case may be, the court by written order shall
    require the executor or administrator to pay so much
    of said portion as Is In money to the State Treasurer;
    and such portions as is in other property he shall
    order the executor or administrator to sell on ,such
    terms as the court thinks best, and, when the proceeds
    of such sale are collected,,the court shall order the
    same to be paid to the State Treasurer, in all such
    cases allowing the executor or,,administratorreasonable
    compensation for his services.
    The judgment dated September 23, 1968, reveals that
    the Court also corrected the record by entering a new judgment.
    Therefore, you are advised that you are authorized to nay the
    sum of $200.00 to Pete Urbanl, Jr., Attorney at Law,and the sum
    of $27.00 to Gertrude McKenna, County Clerk of Galveston County,
    Texas, in accordance with the judgment entered September 23,
    1968, In Cause No. 30601 provided that the money previously
    received has not been deposited in the State Treasury. If
    such money has been deposited in the State Treasury, you would
    not be authorized to withdraw such money from the Treasury
    until the legislature makes an appropriation for the reason
    that Section 6 of Article VIII of the Constitution of Texas
    provides that no money shall be drawn from the Treasury but in
    pursuance of specific appropriations made by law, Pickle v.
    Finley, 
    91 Tex. 484
    , 
    44 S.W. 480
    (1898).
    SUMMARY
    The State Treasury is authorized to pay out
    money in accordance with a corrected judgment
    in order to rectify a previous erroneous judgment
    provided monies received pursuant to the erroneous
    judgment have not been deposited In the State
    Treasury. If such monies have been deposited in
    the State Treasury, payment may not be made until
    the legislature makes an appropriation. Article
    8, Section 6, Constitution of Texas.
    s very truly,
    5 m
    C. MARTIN
    ney General of Texas
    Hon. Jesse James, page 4 (M-288)
    Prepared by John Reeves
    Assistant Attorney General
    APPROVED:
    OPINION COMMITTEE
    Hawthorne Phillips, chairman
    Kerns Taylor, Co-Chairman
    Louis G. Neumann
    Ray McGregor
    James McCoy
    Wardlow Lane
    A. J. CARUBBI, JR.
    Executive Assistant
    - 1403 -
    

Document Info

Docket Number: M-288

Judges: Crawford Martin

Filed Date: 7/2/1968

Precedential Status: Precedential

Modified Date: 2/18/2017