OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
March 7, 1938
Donorablc Ceow ii. Bheppord
Comptroller of Public Accounts
Auetln, Texas
Deal-kit'.Ghpparda
This IS IA QAswer t f February 24, l9!B,
In wblch you say:
he Refund Sus-
Is department
8 required to
ce claim, under
which you attached to your
Oil Distributing: Company,
distributor,
In the Sus-
In Article
which provides
that before motor fuel dis-
paraqraph (a),
which 1s as followa~
.That In lieu of giving? a bond, any dis-
tributor nay deposit in the Suspense Account
of the state Treasury, money in the amount of
the bond that may be required, which shall
AOVer be released until securltlos are substi-
tuted for the same or a bond oseouted in lieu
thereof, or until the Comptroller has made a
60~. Goo. B. Sheppard, maroh 7, l939, Page 2
complete and thorough investigation and author-
ized the a&se to be released; 4 l a*
It appears that the Texas Star Oil DletributiAg Corn-
pany has ceased operations and Is not indebted to the State, and
the comptroller has authorized this sum of ~l.,OOi1.00
to be re-
leased.
You doslre to know whether or Aowlcle.4346 applies
t.41this aocount. The nlrmberof this Article In the yeaFlQ17
was 4336; and It was construed in an Attorney Gcneral,s opinion
written Deaember 18, 3917, by C. W. Taylor, ASSistaAt Attorney
General under lion.Be F. Loonoy. We have been unable ti find
Amy other Attorney GeAor~8e opinlo~, or any court opinion con-
struing this statute. IA view of the fact that we believe Mr.
TaylOr'a OpiniOA aASWOrt3 yOUr qUeStiOA, and that its reasoning
1s unquestionably eound, we are adopting the entire opinion,
lrnd quoting it as fol~owsr
'GOA. Y. D. cope, Care Investigating
Conm~ittee No. 6,
Capitol.
Dear slrt The Attorney Goneral has your lot-
tcr of Dcoember 16th, asltlngfor a construot-
iOA of Article 4338 Revised Civil Statutes Of
lD1L
*Replying thereto, we beg to eay that
Artlole 4336 Revised Civil Statutes of Lgll,
is in the following language,
l'Arlole 4338. Comptroller,s sooount to
be approved by Secretary of State.--The acoount
of the Comptroller against the State shall not
be passed to the Treasurer until approved by
the Secretary of State.,
.So far as we arc able to detenr,lnc the
above article has never been before the courts
of tho State for a construction, and we are
left to the language of the Statute to deter-
mine Its meaning.
"We find that this provision of the Statute
firet found Its plaoo in the laws of this State
as Seotion 16 of the dot approved April 11, A.&
1846, bolng M act to define the duties of the
;~x~~oller of Pub110 Accounts of the State of
, such seotion being as follows:
-.__
. .
gono Qoo. Ii. Sheppcrrd,Uarch ?, 1838, Page 3
s,Scotlon 16. Bo it further enact& the
aocouute of the Comptroller against tho State
shall not be passed te the Treasurer until
approved by the Secretary of State.'
'It will be notod that the only variance be-
tween the present Statute and that of 184a is that
the word *account.,in the present Statute Is In
tho singular, whhilt in the Act of lfi46the snme
word appears In the plural. This Is an imater-
lal varlauce between the two articles for the
reason that under our rules of construction the
eingular and the plural number shall each Include
the other unless othcrwlee expressly provided.
(See Artlolo 66C2 Revised Statutes of f811).
lSeotion 16 of the Act of 1846 became Article
143 of Bartley,e Digest of the Laws of Texas (1863),
and it appears in the identical form used in tho act
of 1846 as Article 6427 of Pnechal,s Digest. In the
Revised Statutes of 187D It appears as Artielo 2756
and for tho first tint in its history as a portion of
the Statutes of this State this Artlolo appears with
the word ,oocount, jn the slnguLar form Otherwise
it is identical with the Act of 1846. This Article
was oarried into tho Statutes of 1896 as Article
2843 and is there in the ssmc form as it now appears.
@An Act of the Third Called Session of the
Thirty-flret Legislature approved August l2, lpltl,
provided for the election, qua1lflcatlon, bond and
duties of the Comptroller and his mployes; provided
complete SystcPnof aooomtlng and bookkeeping and
audltlng for said department with the other depart-
ments and officers of the govermont. This Act es-
presely repealed all Articles contained in Chapter
2 of Title 62 of the Statutes of ID26 in which
Ch&or aud Title is to be found Article 2843 abo?e
referred to. Scotion la, however, of this Act Is la
the following Lanyaget
**The accouut of the Comptroller azalnst the
State shall not bc passed to the Treasurer until
approved by the Secretary of State.,
@It Is In this fom that tho provision appears
in the Statutes of l9lL The above history of this
1eglslatlon shows this provision to be continually
Q, force In this State frox the date of its erlgin-
ti t?nnob?JCAt
ti 1840.
Bon. 000. H. Sheppard, Uarch I, lSo30,Page 4
aComing now to the purpose and ncanlncr of this
statutory provision, vc find that Article 4~~ of
tho neviscd Statute9 of Jnll, boinp, Section scj of
said Act of 1010, provides that tho Comptroller
shall audit the olajms of all persons aqalnst the
State in OQSCS whore provisions for the payment
thoroof have been mado by law, unless the audit-
ing of any such clnin shall be otherwise specially
provided for.
.Thc Comptroller thus being mado the auditor
of accounts against the State proscntod for payment,
it appears that unless some other authority Is
authorized to audit accounts filed by the Comptrol-,
ler's department no such audit oould bc made, and
it is our opinion that the Legislature by enacting
what is now Article 4336 intended that all account
drawn by the Comptroller or his department against
the State should bo audited by the Secretary of
State before warrants therofor were Issued and some
presented to tho treasury for Payment. 1
"He thercforc advise you that In our opinion
it Is the duty of the Comptroller to present to
the Secretary of State for his approval all ac-
oounts against the State in favor of the Comptrol-
ler, or his department, or any manber thereof, and
that before warrants arc drawn by the Comptroller
the accounts upon whioh the eamc are based should .
bear the approval of the SeCretdry of State."
This oglnlon.wrltten during Attorney General Looncyts
arloinlstration ah6ws that the statutes in regard to this question
then as they arc now- The Comptroller (as now
were the s(u;le
provided in Article 4344) shall bc the auditor of all clajms
against the State) but in order for some one to check the Comp-
troller it was provided in the next article (now Article 434S7-
and forurorlyArticle 4336) that the claims in favor of the Camp-
troller, those in which he would be intcrestcd, should be ap-
proved by the Secretary of State.
Our answer to your question is that Article 4345
(formerly Article 4336) requires that the Secretary of State
apprtiveall accounts against the State in favor of the Conp-
troller, or his dopartrzcnt,or any mabcr thereof, but that
the *clearance for rcfun@' which you subriitted to us is not
an account against the State in favor of the Comptroller, and
therofora it does not require the approval of the secretary of
Stato.
Bon. 0~0. il. Sheppard, iiarch 7, lam, Page 6
Yours vory truly
ATTORNEX GENERAL OF TEXAS
By &@b-
Cccll C. Rotsoh
Assistant
APPROVED: