      OFFICE     OF THE ATTORNEY      GENERAL   OF TEXAS
                             AUOTIN

                                             Harch 16, 1939


Hon. Orville S. Carpenter
Chairman and Exeoutlve Director
Texas Unemployment Compensation Commission
Austin, Texas
Dear Sir:
                  Opinion No. O-3S5
                                             Gg0a unempr’p;- )

       Tie are
20th in which
has the authority
ployment compensat
the following circ


                                         employment Com-
                                          to the State
                                          names of per-
                                      nd the amounts of
                                       are entitled.   The



                               warrants have been re-
                              person other than the
                       they are payable and have been
                                such person not entitl-
     ed thereto    on the forged indorsement of the
     payee.
        If such forgeries are discovered before
     the forged warrqnts are presented to the State
Hon. Orville     S. Carpenter, March 16, 1939, Page 2


    Treasurer,  payment is refused; where the
    for'gery   is
                not aiscover8a  until after payment
    has been made by the Treasurer, .the warrant
    is promptly returned to the lndorsers there-
    or.  In any case, payment is either never
    made, or, if made, is always recovered.
       There seems to be some question, however,
    as to the authority of the State Comptroller
    to issue to the proper payee a duplicate of
    such forged warrant.   Will you please aavise
    us, therefore,  if the State Comptroller is
    authorized to issue duplicates of such forged
    warrants?
       The Comptroller of Public Accounts of the
State of Texas must look to the written law of the
state for his authority to issue duplicate warrants.
His power is circumscribed by statute.   drticle 4365,
R.C.S. of Texas, 1925, defines the extent and limita-
tion of that power.
        said   section   reads as follows:
        “The Comptroller, when Satisfied   that any
    original warrant drawn upon the State Treas-
    urer has been lost or destroyed, or when any
    certificate   or other evidence of indebtedness
    approved by the auditing board of the State
    has been lost    is authorizea to issue a dupli-
    cate warrant in lieu of the original warrant
    or a duplicate or a copy of such certificate,
    or other evidence   of indebtedness in lieu of
    such original;   but no such duplicate warrant,
    or other evidence of indebtedness,    shall is-
    sue until the applicant has filed with the
    Comptroller his affidavit,    stating that he is
    the true owner of such instrument, and that
    the same is in fact lost or destroyed,     and
    shall also file with the Comptroller. his bond
    in double the amount of the claim with two or
    more good and sufficient    sureties, payable to
    the Governor, to be approved by the ComptrOl-
    ler, ana conditioned that the applicant will
    Hon. Orville   S. Carpenter,   Yarch 16, 1939, Page 3


        hold the State harmless and return to the
        Comptroller, upon demand being made thereror ,
        such duplicate6 or copies, or the amount of
        money named therein    together with all costs
        that may accrue against the State on colleot-
        ing the same. dfter the issuance of said
        duplicate or copy if the Comptroller should
        ascertain that the seme was improperly issued,
        or that the applicant or party to whomthe
        same wns issued was not the owner thereof, he
        shall at once demand the return of said aupli-
        cat8 or copy if unpaid, or the amount paid out
        by the State, if so paid; and, upon failure
        of the party to return same or the amount of
        money called I or, suit shall be instituted
        upon said bona in Travis County.”
             The statutes of the state are silent upon the
    authority of the Comptroller to issue duplicate war-
    rants except in the express instance of loss or destruc-
.   tion.    Consequently, where a warrant is still  in exist-
    ence, and the procedure outlined in the above quoted
    article,   including filing of applicant’s  bona, has not
    been followed,’ the Comptroller has no authority to’ is-
    sue a duplicate.
            Y&ether the forged warrant has been paid by the
     State Treasurer or not, the rightful    ayee has no claim
     upon the State Comptroller for a dupl Pcate in the ab-
     senoe of proof that the original  instrument has been
    .lost or destroyed.  RI6 only redress is against the
     wrongdoers guilty of the forgery regardless of the hara-
     ship this form of remedy places upon him.
            According   to 34 T8X. SW. p. 636:
             “d state, municipal, county, district   or
          school warrant is an instrument, generally in
          the form of a bill of exchange or Order, drawn
        . by an officer upon the person having charge
          of the public funds, directing him t0 pay an
          amount of money specified   to the person named,
          or his order, or to bearer.    In substance war-
          rants are mere promises to pay the amount
Hon. Orville   S. Carpenter,   Karch 16, 1939, fage 4


      specifiecl; they are not bonds, nor are they
      negotiable instruments* they are only prima
      facie evidencea of an &.iebtedness,  serving
      as a convenient mode of conducting the public
      business."
       The original payee remains the rightful owner
of the warrant and is legally entitled to recover it
from the possessor despite successive indorsements.
        It is our opinion that Article 4365 prohibits
the issuance of a duplicate warrant where the loss or
destruction   of the original has not been called to the ,I
attention and proven to the satisfaction   of the Comp- [
troller   in the manner provided in said statute.
        Trusting   that this   answers your ,inquiry, we
are
                                    Yours very truly
                                ATTORNEY
                                       CEMGLOF TEXAS
