      THEA-ITORNEY             GENERAL
                  OF TEXAS
                  Ausn~.   -


                  April 23, 1948

Hon. Geo. R. Sheppard,         Opinion No. V-551
Comptroller Public Accounts,
Austin, Texas                  Re:   The authority of the
                                     Comptroller of Pub-
                                     lic Accounts to
                                     waive limitationof.
                                     time within which
                                     claims for burial ex-
                                     penses for deceased
                                     widows of Confederate
                                     Veterans must be pre-
                                     sented.
Dear Sir:
          Your request for an opinion upon the above titled
subject matter is as follows:
     "This department is in receipt of a claim for
     the issuance of mortuary warrant under Article
     6227, R.C.S., for the burial expenses of a de-
     ceased widow of a Confederate Veteran. The
     claim and proof of death was not made to the.
     Comptrollerwithin 40 days from the date of
     the death of the pensioner. Because of the
     clad$mnot having been made within the 40-day
     period this department has refused to issue
     warrant. The question has arisen as to wheth-
     er this department may waive the limitation in
     Article 6227 and issue warrant in payment of
     the mortuary claim where such claim and proof
     of death is made and filed with this department
     more than 43 days after the death of the pen-
     sioner.
     "The opinion written by J. V. Frnka, Assistant
     Attorney General, addressed to Mr. C. H. Cav-
     ness, State Auditor, covering the claim of Mrs.
     S.S. Williams, a pensioner, under H.B. 701, 49th
     Legisiature,partially covers this point, how-
     ever it is argued by the claimant that this op-
     inion is off-set by the Case of Limestone County
Hon. Geo. H. Sheppard - Page 2   (V-55l.n)


     vs. Robbins, 38 S+lt2)588.I shall thank you
     to advise me whether or not this department
     may.waive the limitation and issue warrant
     as above mentioned."
          Article 6227, as amended by the 48th Legisla-
ture, p. 187 (1943) contains the following:
          Whenever any pensioner who has been
     regularly placed upon the pension rolls un-
     der the provisionsof this law relating there-
     to, shall die, and proof thereof shall be made
     to the Comptrollerwithin forty (40) days from
     the date of such death by the affidavit of
     the doctor who attended the pensioner during
     the last illness, or the undertaker who con-
     ducted the funeral, or made arrangementsthere-
     for, the Comptroller shall issue a mortuary
     warrant for an amount not exceeding One Hun-
     dred ($100.00)Ddllars payable out of the pen-
     sion fund, in favor of the heirs or legal rep-.
     resentativesof the deceased pensioner, or in
     favor of the person or persons owing the ac-
     counts . . . ."
          It will be seen that the authority of the Comp-
troller to issue a warrant is limited to those caseswhere
proof of death has been made to him within forty days from
the date of such death. It is familiar law that public
officers have only such poder or a-Athorityas shall be con-
ferred upon them by law.  By this test the Comptroller has
no authority or right in any event to issue his warrant in
the absence of such proof of death required by the statute.
This is jurisdictionaland is condition precedent to issu-
ing any warrant. See Brand v. Corner & McRea, 78 S.N. 2d
712.
          In Opinion No. 0-6500 this office advised you as
to this precise point saying:
          "In view of the foregoing authorities,it
     is the opinion of this Department that the pro-
     visions of Article 6227 are mandatory and that
     the Comptrollerof ?ublic Accounts is not auth-
     orized to issue a warrant in payment of a mort-
     uary claim when the claim is not presentedwith-
     in the forty day period; . . .‘I
Hon. Geo. H. Sheppard - Page 3   (V-55l)


          We adhere to the rule announced in Opinion No.
0-6500 and hold that you are without authority to issue
a warrant in payment of a mortuary claim under Article
6227 unless the proper proof thereof has been filed with-
in the k0 days period of the statute.
          The case of Limestone County v. Robbins, 38 S.W.
26 580 mentioned by you has no bearing upon the present
inquiry because in that the case the question of limita-
tion as a defense was present and the Court specifically
pointed out its pertinence.sayingr
          *The privilege possessed by a county to
     set up the statutes of limitation as a defense
     against a just debt emanates,fromthe Legisla-
     ture, and is subject to the legislativewill.
     The statutes of limitation bar the holder of
     the debt from access to the courts, but the
     debt is not extinguished. The removal of the
     bar does not impose a new debt against the
     county, or involve the bestowal of a gratuity
     on the debt holder, but simply opens the way
     for the enforcementof the county(s moral ob-
     ligation to pay the old debt."
          In the present case we have held that no cause
of action ever existed in the situation before us. YOU
may not issue the warrant because no valid claim ba
existed under the present law. You are bound by thi 1'?
as enacted by the Legislatureand have no authority to
waive any of its requirements.
                         SUMMARY
          The Comptroller of Public Accounts is not
     authorized under Article 6227 of the Revised
     Civil Statutes as amended in 1943 to issue a
     warrant against the Mortuary Fund in favor of
     heirs where no proof as required by the Arti-
     cle was filed within the period of time the?e-
     in provided.
                                   Yours very truly,
                             ATTORNZY GENWAL OF T-&S


                             By
                              %-ip&~
                                   Assistant
