          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




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