mm Amroxznm~ GENERAL 

OFTEXAS 

February 10, 1958 

Honorable Robert S. Calvert Opinion No. WW-364 

Comptroller of Publlo Accounts 

Austin, Texas Re: The validity of the 

claim of A. Q. Elder 

in the amount of $152.71 

and the authority of the 

Comptroller to Issue a 

warrant In the payment 

Dear Mr. Calvert: of same. 

Recently you requested an opinion of this office as 

to whether your department Is authorized to Issue a warrant in 

payment of a olalm of Dr. A. Q. Elder a8 rovlded for by S.B. 

No. 115, Acts 55th Leg., R.S., 1957, Ch. 11 96, page 1429. The 

following facts are revealed by the file submitted with your 

opinion request and by the records of the General Land Office. 

The N/2 of Sohool Section 2 in Red River County, 

located and surveyed by virtue of Certificate No. 1570, issued 

to the T.C. Ry. Co., was awarded to C. L. McWllliams Maroh 7, 

1900, upon a plication filed in the Cteneral Land Office September 28, 1 8 99, to purchase the said N/2 of Section 2 as an 

actual settlor under the classification dry agriculture and 

at the appraisement of $2.00 per acre. Thie sale was authorized by virtue of Title LXXVII, Ch. 12-A, Revised Statutes of 

Texas, 1895. 

On July 3, 1901, C. L. McWilliams and wife conveyed 

the N/2 of Section 2 to S. C. McWilllams by deed filed in the 

Land Office April 11, 1902. 

On November 4, 1902, S. 0. McWilliams, assignee, 

made the required proof of ocaupancy of the N/2 of Section 2 

which proof was filed in the Land Office November 7, 1902. 

On July 12, 1902, 3. 0. MoWilllams and wife conveyed the N/4 of Section 2 to W. A. Mauldin by deed filed in 

the Land Office September 17, 1903 and upon the filing of such 
_Yi . 

Honorable Robert S. Calvert, Page 2 (w-364) 

deed the N/4 of Section 2 was aegregated on the records of 

the Land Office and placed on a separate account In the name 

of W. A. Mauldln. 

On January 28, 1903, S. G. McWilliams paid the interest due on the S/2 of the N/2 of Section 2 and continued 

to do so .through 1907. 

On November 7, 1908, Miss A. McWilliams paid the 

interest due on the land in question and continued to pay 

Interest thereon through 1910. 

On December 9, 1911, W. C. Norris paid Interest 

thereon. 

On February 11, 1913, A. G. Elder paid interest due 

on this land. 

On December 1.6, 1916, A. 0. Elder paid the intereet 

due on this land. 

On February 14, 1919, A. G. Elder paid the interest 

due on this land. 

On January 3, 1920, A. G. Elder paid the interest 

due on this land. 

On December 15, 1920, A. G. Elder paid the Interest 

due on this land. 

On January 3, 1922, Dr. A. G. Elder paid the interest due on this land. 

From December 24, 1924, through 1935 interest due 

was paid by the following parties: Judge 0. W. Barcus, Austin 

Dodd, Jim Jones and Harry R. Jones. 

On January 6, 1943, the sale by the State of the 

S/2 of the N/2 of Section 2 was forkYe,eited by the Land Commlsaioner for non-payment of interest.' 

On April 3, 1943, the Commissioner of the General 

Land Office received kn inquiry from Dr. A. G. Elder concerning the redemption of the S/2 of the N/2, Section 2, T.C. Ry. 

Co. Survey in Red River County. 

The Commissioner of the Qeneral Land Office replied 

to the aforementioned letter stating in substance that the 

purchase rights to the land in question had been forfeited on 

January 6, 1943, for non-payment of interest installments. 
-’ - 

Honorable Robert S. Calvert, Page 3 (m-364) 

This letter further stated that under the provisiona of Article 5326, V.C.S., forfeited school land accounts may be relnstated by the purchasers at any time within five years after 

forfeiture by payment of all past due Interest accompanied by 

a written request for reinstatement. 

On April 10, 1943, 

In the amount of $152.71 was 

Office from Dr. A. Q. Elder. 

payment of delinquent interest 

received by the Qeneral Land 

On April 13, 1943, 

General Land Office from Dr. 

which affidavit reads as follows: 

affidavit was received in the 

A. G. Elder of Deport, Texas, 

"TO : BASCOM GILES, COMMISSIONER 

OF THE GENERAL LAND OFFICE, AUSTIN, TEXAS 

STATE OF TEXAS 

County of Lamar 8 

Before me, the undersigned authority, on 

this day personally appeared 

who upon being duly sworn states 

on oath: That'he is the owner or legal representative of A. G. Elder, Deport, Texas, the 

owner of the following described land in Red 

River County, Texas: 

S/2 of N/2 2, Cert. 1570, Grantee-T.C. Ry. Co. 

160 acres 

That the above land has been forfeited 

for nonpayment of interest and affiant hereby 

tenders all delinquent interest and requests 

that this tract be reinstated in acoordance 

with the provisions of Article 5326 of the , 

Revised Civil Statutes of 1925. 

/s/ A. G. Elder 

Affiant 

Deport, Texas 

Address 

Sworn to and subscribed before me this 

12th day of April A.D. 1943. - 

/s/ Joe Grant 

Notary Public in and 

for the County of 

Lamar, State of Texas." 
Honorable Robert S. Calvert, page 4 (Ww-364) 

On June 1, 1943, the following letter was received 

in the General Land Office written by Dr. A. C. Elder: 

"Han, Bascom Cilea, Commissioner 

Of The Qeneral Land Office 

Austin, Texas. 

Dear Mr. Glles:-- 

This is to acknowledge receipt of copy of 

your letter to Mr. Harry R Jones of Houston, in 

regard to reinstatement of the account covering 

the S-172 of N-1/2, section 2, certificate 1570, 

T.C. Ry. Co. survey in Red River County. 

And will say in this connection, that I was appointed 

Administrator of The Pat B Stokey, estate at the death 

of Pat B Stockley who was my Uncle, In the final settlement of the estate some of the heirs wera Indebted 

to Me and the Probate Court gave IM..a Lieiion this land 

for the indebtedness of these heirs, and I was only 

protecting My Interest in applying for this reinstatement. 

With kindest regards, I am. 

Sincerely. 

/s/ A. 0. Elder" 

On April 13,, 1943, pursuant to said payment of dellnquent interest, affidavit of ownership and re uest for reinstatement, the account covering said S/2 of N 7 2, Section 2, 

was reinstated on the records of the Qeneral Land Office. 

Payment of Interest due November 1, 1943, and for , 

subsequent years through November 1, 1955, was paid by Mr. 

D. 0. Lackey of Chicota and Athens, Texas. 

On November 3, 1956, full payment of all remaining 

prinaipal and Interest was made by D. 0. Lackey of Athens, 

Texas, and Patent Non. 385, Volume 26B was issued November 20, 

1956, to S. 0. McWllliams, assignee'. 

Senate Bill No. 115 provides in part that the following sum of money is directed to be paid out of the sum appropriated and set aside by H.B. No. 133, Acts 55th Leg., R.S., 

for the payment of Itemized claims "to pay Arthur 0. Elder, 
Honorable Robert S. Calvert, page 5 (a-364) 

Deport, Texas, for refund on delinquent Interest on certain 

lands in Red Rlver.County, . . . $152.71." 

Although Senate Bill 115 directs payment to A. 0. 

Elder of the sum of $152.71 the constitutionality of said 

bill is put in question by the facts as above outlined. 

Article 3, Section 44 of the Constitution of Texas 

provides In part that the Legislature shall not 

"grant, by appropriation or otherwise, any amdunt 

of money out of the Treasury of the State, to any 

individual, on a alaim, real or pretended, when 

the same shall not have been provided for by preexisting lan; . . .' 

Likewise, Article 3, Section 51 of the Texas Constltution provides in part: 

"Sec. 51. The Legislature shall have no 

power to make any grant or authorize the making 

of any grant of publia money6 to any Individual, 

association of individuals, municipal or other 

corporations whatsoever; . . ." 

Claim under pre-existing law has been held to Include 

a common law right as well as a statutory right. 

Bank v. Sheppard, 123 Tex. 272, 71 S.W.2d 242; 

Austin Nat iona 

123 S.W.2d 953 (Tex.Civ.App., err. dlsm.). 

1 

Watkins v. State, 

However, we are unable to find either a pre-existing 

statutory law under whloh this claim arose or a pre-existing 

common law right against the State of Texas residing in Dr. 

Elder. 

Dr. Elder paid the interest due on the purchase 

priae of the land in question for the years 1913, 1916, 1919, 

1920, 1921 and 1922. Purchase rights to the S/2, N/2 of Section 2, T.C. Ry. Co. Survey in Red River County were forfeited 

bythe Commissioner of the General Land Office on January 6, 

1943, as provided for in Article 5326, V.C.S., for non-payment 

of interest due on the purchase price of same. 

On April 10, 1943, the Land Office received from 

Dr. Elder $152.71 for past due interest and penalties. On 

April 13, 1943, Dr. Elder filed an affidavit of ownership of 

this property in the General Land Office. These acts of Dr. 

Elder were done voluntarily, without duress, fraud, or lmposition with full legal notice that the right to reinstate is 

restricted to "the purchaser from the State or his vendees or 

their heirs or legal representatives." 
Honorable Robert S. Calvert, page 6 (~~-364) 

If. 18 also apparent that Dr. A, Q. Elder proceeded 

with the reinstatement in order to protect some claimed Interest 

in this land. The reinstatement payment tendered by Dr. Elder 

presumably accomplished this result. It kept the land involQed 

open to the assertion that any party might make against it r&mr 

than blot out by forfeiture and subsequent sale any inchoate 

rights which might have theretofore acaured to Dr. Elder and 

attached to this land. 

In any event the reaord is devoid of any legal predicate for payment of ,this claim. Under the facts as set out 

above. we believe no sommcm law riaht aan be said to arise 

agalnh the State. State v. PerlsEeln, 79 S.W.2d 143 (Tex.Clv. 

App.) 1934; and see Fort Worth Cavalry Club v. Sheppa$l,S;;5 

Tex. 339, 83 S.W.2d 660; State v. Steak Co., 236 S W 

(Tex.Civ.App., err< ref., 1951) 32 T J 

48, 29 T.J. p. 715, Mistake, B 4. ' . 

p. 727, Payments, 3 

Therefore, we are of the opinion that the approprlatlon of $152.71 to pay Dr. A. C. Elder provided for by S.B. 115, 

Acts 55th Leg., R.S. 1957, ah. 496, violates Sections 44 and 51 

of Article III, Constitution of Texas. We advise you that you 

are not authorized to issue a warrant in payment of this claim. 

SUNMARY 

The Comptroller Is not au$horized to issue 

a warrant In payment of the claim of Dr. 

A. 0. Elder as provided for by Senate Bill 

No. 115, Acts 55th Leg., R.S., 1957, Ch. 

496, page 1429. To do so would be a vlolation of the restrictions imposed by Sections 

44 and 51, Article 3 of the Constitution of 

Texas. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

BY 

Milton Richardson 

Assistant 

APPROVED: 

OPINION COIYMITTER 

Qeo. P. Blackburn, Chairman 

Morgan Nesbitt 

Wayland Rivers 

John H. ldinton 

RRVIRWRDFORTRRATTORNRY 

GENERAL BY 

W. V. Cteppert