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
