Untitled Texas Attorney General Opinion

Honorable Henry G. Lehman, Chairman
Claims and Accounts Committee
House of Representatives
Austin, Texas

Dear Sir: Opinion No. O-3371
Re: Whether the Legislature
may appropriate money to
the Citiiens National Bank
of Cameron, Texas, to re-
imburse it for losses sus-
tained by the purchase of
certain Confederate Pension
Warrants.
I,
You have requested our opinton on the question of whether the Legis-
lature may appropriate money to pay the Citizens National Bank of Cameron,
Texas, for losses sustained by it on the purchase of certain Confederate Pen-
sion Warrants upon which the State Comptroller has stopped payment. You
have submitted to us, together with your request, the files of the Bank relat-
ing to these warrants which reflect ~the following warrants now held by the
Citizens National Bank of Cameron:

1. Eight warrants of Twenty-five Dollars each issued to Mrs.
Sarah Jane Adams from August, 1936, to May, 1937, totalling Two
Hundred Dollars. The file indicates that Mrs. Adams qualified for
Confederate Pension from the State of Louisiana in 1938 upon affida-
vit by her that she had been a resident of Louisiana for at least
five years prior to that date.

2. Nine Confederate Pension Warrants of Twe,nty-five Dollars
each issued to Mrs. W. E. Oxford. In letter of Mrs. Oxford, dated
March 29, 1937, she states that she at that time had bean living in
Los Angeles for a year and a half.

3. Nine Confede,rate Pension Warrants of Twenty-five Dollars
each totalling Two Hundred and Twenty-five Dollars issued to Mrs.
Cordelia A. Forrest. Mrs. Forrest:dled in Knoxville, Tennessee
on January 4, 1936, and the file indicates that she had lived ,in Tennes-
see since August, 1934.
Honorable Henry G. Lehman, Page 2. O-3371

4. Twenty-five Dollar and Fifty Dollar Confederate Pen-
sion Warrants totalling Six Hundred and Seventy-five Dollars
issued to Mr. W. M. Seale. The file submitted to us relating
to Mr. Seale’s warrants Is not complete and consequently we
made inquiry of the Confederate Pension Division of the
Comptroller’s Department and learned that Mi. Scale had been
receiving two warrants every month at different addresses for
a number of years and that by reason thereof he had received
about Nine Hundred Dollars in pension money over what he was
.entitled to under the law and that’this Nine Hundred Dollars is
still unpaid to the State.

5. Five warrants of Twenty-five Dollars each totalling
One Hundred and Twenty-five Dollars issued to Mrs. Lucinda
A. Miers. The Confederate Pension Division of the Comptrol-
ler’s Department advises us that Mrs. Miers remarried on
June 29, 1937, and that she has cashed warrants totalling Three
Hundred Dollars since the date of her marriage which sum she
has not repaid to the State.

Article 6220, Revised Civil Statutes of Texas, 1925, provides in
part:

I’* * *, and no pensioner who leaves this State for a period
of over skmonths shall draw a pension while so absent; * * *.”

Clearly, under this provision the warrants described above in para-
graph Nos. 1, 2 and 3, issued to Mrs. Sarah Jane Adams, Mrs. W. E. Oxford
and Mrs. Cordelia A. Forrest, were invalid by reason of the fact that the
payees were out of the State more than six months when these warrants we,re
issued. The Comptroller properly stopped payment on thase warrants when
he learned of the absence from the State of these payees.

Article 4350, Revised Civil Statutes of Texas, 1925, as amended,
reads,:

“No warrant shall be issued to any person indebted to the
State, or to his agent or assignee, until such d,ebt is paid.”

Since Mr. W. M. Seale is indebted to the State in the amount of approxi-
mately Nine Hundred Dollars because of double payment to him as described
in paragraph No. 4, above, Mr. Seale has been ineligible for further pension
payment8 from the date such double payment commenced until the debt shall
have been repaid by him.
 Honorable Henry G. Lehman, Page 3, O-3371

Article 6205, Revised Civil Statutes of Texas, 1925, provides in
part:

“9 * * A widow entitled to a pension under this Act,
but who remarries a man other than a Confederate soldier
or sailor shall not be entitled to a pension, but shall not be
barred from receiving a pension in the event she should be
left a widow after such remarriage, so long a,s she remains
a widow.”

By virtue of this provision, Mrs. Lucinda A. Miers has been inelig-
ible for Confederate pensions since the date of lar subsequent marriage on
June 29, 1937, and consequently pension warrants issued to her since that
date are invalid.

It appears, therefore, that none of the payees of the above described
, warrants were eligible to receive Confederate pensions when these warrants
were issued. State warrants are not negotiable paper in the sense that they
become incontestable in the hands of a holder in due course. Lasseter v.
Lopez (Tex, Sup. Ct.), 217 S. W. 373; Keel v. Pulte (Tex. Corn. Ape.), 10 S. W.
(2d) 695. 38 Texas Jurisprudence852 states the rule as follows:

“A warrant issued by the Comptroller is not a negotiable
instrument in the sense that an innocent purchaser could col-
lect from the State the amount stated on the face of the warrant
regardless of the amount actually due.”

Since under the statutes, the State owed nothing to the payees of these
warrants when issued, the Comptroller acted properly in stopping payments on
the outstanding warrants upon being advised of the ineligibility of the recipients.

We turn now to the question of whether the Legislature may appropriate
money to reimburse the Cittzens State Bank of Cameron for its loss by reason
of its purchase of these invalid warrants.

In State v. Wilson, 71 Tex. 291, the Texas Supreme Court held invalid
an act of the Legislature which sought to reimburse a contractor for his LOSS
due to the discount he was required to take on State warrants. We quote from
the opinion of Judge Gaines in that case at page 302:

“The payment of this claim is prohibited by section 44 of
article 3 of the Constitution, which provides that the Legislature
Honorable Henry G. Lehman, Page 4, O-3371

shall not ‘grant by appropriation or otherwise any money out
of the treasury of the State to any individual on a claim, real
or pretended, when the same shall not have been provided for
by the pre-existing law’.”

In 1934, the Commission of Appeals in Austin National Bank v.
Sheppard, 71 S. W. (2d) 242, at page 245, speaking through Judge Critz, in
construing the same provision of Article 3, Section 44, said:

“By its expre,ss words the constitutional provision under
consideration in no uncertain terms prohibits the Legislature
from appropriatmg state money to ‘any individual’ unless such
appropriation shall have been provided for by a ‘pre-existing
law.’ We interpret this to mean that the Legis,lature cannot ap-
propriate state money to ‘any individual’ unless, at the very
time the appropriation is made, there is already in force some
valid law constituting the cla,im the appropriation is made to pay
a legal and valid obligation of the state. By legal obligation is
meant such an obligation as would form the basis of.a judgment
against the state in a court of competent jurisdiction in theevent
it should permit itself to be sued. Nichols v. State, 11 Tex. Civ.
App. 327, 32 S. W. 452 (writ ref.); State v. Haldeman (Tex. Civ.
Ape.), 163 S. W. 1020 (writ ref.); State v. Wilson, 71 Tex. 291,
9 s. w. 155.

“In connection with the above, the case of Kilpatrick v.
Compensation Claim Board that a mere moral obligation will
authorize an appropriation by the Legislature. No writ was
applied for in that case, and it never received the sanction of
this court. The Kilpatrick Case cites Weaver ,v. Scurry County
(Tex. Civ. Ape.). 28 S. W. 836; Chambers v. Gilbe,rt, 17 Tex..
Civ. App. 106, 42 S. W. 630; and State v. Elliott (Tex. Civ. App.)
212 S. W. 695. We have carefully examtired these authorities,
and in our opinion none of them supportthe holding that a mere
moral obligation will support an appropriation of state money
to an individual,”

Under the foregoing authorities it seems apparent that an appropria-
tion to reimburse the Bank for its loss on the purchase of these invalid Con-
federate Pension Warrants is forbidden by,Article 3, Section 44 of the Consti-
tution of Texas.
Honorable Henry G. Lehman, Page 5, 0-3371

We are returning to you herewith the files relating to the five
pensioners which you submitted to us.

Yours very truly

ATTORNEY GENERAL OF TEXAS

Walter R. Koch
Assistant

PROVED MAY

FIRST ASSISTANT
ATTORNEY GENERAL

WRK:RS
APPROVED
OPINION

Chairman