.’   .




         :Honorable 0. B. Ellis
         Director, Texas Department
           of Corrections
         Huntsville, Texas
                                      Opinion No. W-454
                                      Re:   Authority of the Comptrol-
                                            ler of Public Accounts to
                                            issue a warrant for payment
                                            of penalty required by the
                                            United States Government
                                            In order to market cotton
         Dear Mr. Ellis:                    raised on prison farms.
                   You have requested an opinion concerning the author-
         ity of the Comptroller to issue a warrant in payment of
         necessary penalties in order to market cotton raised on four
         prison farms in Brazorla County.
                   Under the provisions of Section 1346, Title 7,
         United States Code Annotated, the Texas Department of Correc-
         tions is required to pay a certain penalty in order to market
         the cotton now being grown free of any lien on the Retrieve
         State Farm, Darrington State Farm, Clemens State Farm and
         Ramsey State Farm, all in Brazoria County. The cotton allot-
         ment made by the Brazoria County Committee on the 5th and 12th
         days of November, 1957, Is now on appeal in the United States
         District Court for the Sourthern District of Texas, Galveston
         Division, in a case styled State of Texas, et al v. Jack
         Wendt, et al, Review Committee. In this case the Texas Depart-
         ment of Corrections is not questioning the liability of that
         Department to pay the penalties Involved.
                   The only question presented in your request is that
         of the authority of the Comptroller to issue a warrant for
         the payment of the penalties. Under Subdivision d of Section
         1346, Title 7, United States Code Annotated, the United States
         Government has a lien on all cotton raised on the above named
         farms until such penalty Is payed. Therefore, it is necessary
                                                                 . .




Honorable 0. B. Ellis, Page 2 (WW-454).


for the Department of Corrections to pay the penalty in order
to market the cotton free of any lien of the United States
Government. It is our opinion that the payment of the penalty
Is an expense incidental to the marketing of the cotton.
          Item 114 of the appropriation to the Texas Prison
System in House Bill 133, Acts of the 55th Legislature, Regu-
lar Session, 1957, Chapter 385, page 870, provides as follows:
                                   "For the Years Ending
                                   August 31, August 31,
                                     1958             1959
          "For Other Expenses--
     "114. Food, medical supplies,
          stock feed, seed, fer-
          tilizer, insecticides,
          veterinary supplies,
          shoes, clothing and bed-
          ding, factory and shop
          materials, tires, tubes,
          gas, oil, repairs; of-
          fice supplies, rents,
          water and utilities,
          postage on material fur-
          nished t'oBoard of Par-
          dons and Paroles, postage,
          telephone, telegraph,
          freight, express, dray-
          age, per diem of board
          members, travel expense,
          transportation of pri-
          soners, rewards, in-
          quests, insurance, bond
          premiums, cleaning sup-
          plies, equipment, and
          co+ingencies . . . . . $l,o25,82g $;,o25,82g
              .   .   .                   .   .   .

          At the time the above appropriation bill was enacted
the cotton acreage allotment and the penalties accruing there-
from were not anticipated by the Legislature, and, therefore,
such ex ense constitutes a contingent expense, payable out of
Item 11E . You are, therefore, advised that the Comptroller of
Public Accounts is authorized to Issue a warrant for the pay-
ment of such penalties.
Honorable 0. B. Ellis, Page 3 ,(WW-~454).


                            SUMMARY
            The Comptroller of Public Accounts Is
            authorized to issue a warrant for the
            payment of penalties necessary for
            the Department of Corrections to mar-
            ket cotton raised on the Texas Prison
            Farms In Brazorla County free and
            clear of existing liens by the United
            States Government.
                               Yours very truly,

                               WILL WILSON
                               Attorney General of Texas


                                            &’ ( ;* ! i. C,.!, ..’

                                  Sohn Reeves
                                  Assistant




JR:BHT:jI
APPROVED:
OPINION COMMITTEE
J. Arthur Sandlln, Chairman
Linward Shivers
J. Milton Richardson
Morgan Nesbitt
REVIEWED FOR THE ATTORNEY GENERAL
BY:
     W. V. Geppert
