SE ATT~KNEY GENERAL
QIF TEXAS
PRICE DANIEL
ATTCIRNEYGENERAL
November 15, 1950
Hon. T. S. Painter, President
The University of Texas
Austin, Texas Opinion No. V-1119
Re: Authority of the
Comptroller of Pub-
lic Accounts to is-
sue a duplicate
warrant without get-
ting a bond from the
payee when the orig-
inal warrant never
Dear Dr. Painter: reached the payee.
Your request for an opinion reflects that The
University of Texas purchased from an out of State com-
pany certain printing and press equipment in the total
sum of $14,222.72. Based on a proper invoice, this pur-
chase was vouchered for payment on February 16, 1950,
and thereafter, on February 23, 1950, the State Comp-
troller of Public Accounts issued State Warrant No.
532026, drawn on the State Treasury, in the sum of $14,-
222.72, payable to the company in question. The war-
rant was delivered to the office of the Auditor of The
University of Texas on February 28, 1950, and the Au-
ditor's records reflect that the warrant was mailed to
the company on March 1, 1950.
Subsequently the University was notified by
the company that it had not received payment of Its ac-
count. It was then developed that the warrant had been
misplaced or lost in some unknown manner.
The company has demanded that a duplicate war-
rant be issued. The University has advised the company
thet a duplicate warrant can only be issued by the State
Comptroller in accordance with the requirements of Arti-
cle 4365, Revised Civil Statutes, 1925, which, among
other things, requires the filing of a bond by the true
owner of the original warrant in double the amount of
the claim. The company, upon advice of its counsel,
has refused to file the bond on the ground that it
never received the warrant and that the statute only
Hon. T. S. Painter, page 2 (V-1119)
applies to original warrants which have been actually
delivered and received by the payee. Thus it is con-
tended that the lost warrant Is not an “original war-
rant, ” but if so, the State is the “true owner.’
Based upon the above facts you have asked
whether the Comptroller can legally issue a duplicate
warrant to the company in question without a compliance
on its part with the requirements of Article 4365.
Article 4355, V.C .S., provides in part:
“The Comptroller, when satisfied that
any original warrant drawn upon the State
Treasurer has been lost or destroyed, . . .
is authorized to issue a duplicate warrant
in I.ieu of the original warrant . . * but
no such duplicate warrant . . . shali’issue
until the applicant has filed with the Comp-
troller his affidavit, stating that he is the
true owner of such instrument, and that the
same is in fact lost or destroyed, and shall
also file with the Comptroller his bond in
double the amount of the claim with two or
more good and sufficient sureties, payable
to the Governor, to be approved ,by the Comp-
trol.ler, and conditioned that the applicant
will hold the State harmless and return to
the Comptroller, upon demand being made there-
for, such duplicates . . . or the amount of
money named therein, together with all costs
that may accrue against the State on collect-
ing the same. . . .”
The purpose of this statute is clear. It is to
authorize the drawing of a second or duplicate warrant in
those cases where the first or original State warrant le-
gally drawn was subsequently lost or destroyed.
Article 4355 prescribes the conditions and re-
quirements under which the State Comptroller may execute
a duplicate warrant “in lieu of ,” to take the place of,
the original warrant. His authority to draw a duplicate
State warrant is fixed and limited by the terms of that
statute. Att’y Gen. Ops. 0-385 (1939), O-2002 (19&O),
o-2151 (1240). It expressly provides in mandatory langu-
age that no such duplicate warrant . . . shall issue un-
til the applicant” by his affidavit to the Comptroller
Hon. T. S. Painter, page 3 (V-1119)
states (1) "that he is the true owner of the instrument,"
(2) "that the same is in fact lost or destroyed." It re-
quires that the applicant "shall also file his bond
in double the amount of the claim" in confo&&e with
that law. No discretionary authority is vested in the
State Comptroller, expressly or by Implication, to dis-
pense with the bond required of the applicant-afflant
thereunder. True, the applicant may or may not have had
part in the loss or destruction of the original warrant.
However, the importance to the State of having its public
moneys protected outweighs the infrequent inconveniences
caused the Individual. Att'y Gen. Op. O-3617 (1941). In
any such event, the Legislature has not seen fit to bur-
den the State Comptroller with the onerous duty to de-
termine in whom the fault for the loss or destruction
lies. The law is beneficial to both the lawful owner and
the State.
"Original warrant" as used in Article 4365, we
thinlc, means the first warrant issued by the State Comp-
troller pursuant to a proper and particular claim g;s;nt-
ed by a competent authority. Further, the phrase
owner of such instrument" in that law refers to the payee
designated on the original warrant or any other person,
firm or corporation who can show he is the present true
owner by virtue of an assignment thereof or otherwise.
Att'y Gen. Op. O-2489 (1940).
Article 4365 was first enacted in 1910. H.B.
13, Acts 31st Leg., 3rd C.S. 1910, ch. 17 p. 37. More
recently, in 1943, House Bill 247, Acts 46th Leg., 1943,
ch. 298, p. 441 (Art. 7065b-13, V.C.S.) was passed. This
law among other matters authorizes the State Comptroller
to draw warranis for motor fuel tax refunds to certain
claimants. Section (g) of Article 7065b-13, supra, pro-
vides in part:
" . . . If the claimant has lost or loses, or
for any reason failed or fails to receive %ir-
rant after warrant was or has been issued by
theComptroller, and upon satisfactory proof of
such, the Comptroller may Issue claimant dupli-
cate warrant as provided for in Article 4365,
Revised Civil Statutes of Texas of 1925." (Ru-
phasis added.)
This latter legislative expression on the is-
suance of duplicate warran@ for motor fuel tax refunds
Hon. T. S. Painter, page 4 (V-1119)
coincides with our construction of Article 4365 consld-
ered herein.
Under the submitted Pacts, It is our opinion
that the State Comptroller cannot legally issue a dupli-
cate warrant to the company in question in payment of
the above account without a compliance by this concern
with the requirements of Article 4365. Att'y Gen. Op.
O-2305 (1940).
SUlNARY
The State Comptroller of Public Accounts
may issue a duplicate warrant in lieu of an
original warrant lost or destroyed only in
accordance with the mandatory requirements of
Article 4355, V.C.S. Art. 7065b-13 Sec. (g),
v.c.s * Att'y Gen. 0 s. 0-385 1939 ,. O-2002
(194Oj: O-2161 (19407, O-2305 I 1940 I .
APPROVED: Yours very truly,
J. C. Davis, Jr. PRICE DANIEL
County Affairs Mvislon Attorney General
Everett Hutchinson
Executive Assistant
Charles D. Mathetrs Chester E. Ollison
First Assistant Assistant
CEO:mw