.’

.

:Honorable0. B. Ellis

Director, Texas Department of Corrections Huntsville, Texas Opinion No. 

### W-454 Re: Authority of the Comptroller of PublicAccounts to issue a warrant for payment of penalty requiredby the United States Government In order tomarket cotton Dear Mr. Ellis: raised on prison farms.

You have requested an opinion concerning the authority of the Comptrollerto **issue** a warrant in payment of necessarypenalties in order tomarket 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 Corrections is required to pay a certainpenalty 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 allotment made by the Brazoria County Committeeon the 5th and 12th days of November, 1957, Is now on appeal in the United States District Court for the SourthernDistrict 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 Department of Corrections is not questioning the liabilityof that Department to pay the penalties Involved.

The only questionpresented in your request is that of the authority of the Comptrollerto issue a warrant for the payment of the penalties. Under Subdivisiond of Section 

### 1346,Title 

### 7, United States Code Annotated, the United States Governmenthas a lien on all cotton raised on the above named farms until suchpenalty Is payed. Therefore, it is necessary. .

Honorable 0. B. Ellis, Page 2 

### (WW-454).

for the Department of Correctionsto pay the penalty in order tomarket 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 themarketing of the cotton.

Item 114 of the appropriationto the Texas Prison System in House Bill 

### 133,Acts of the 55th Legislature,Regular Session, 1957, Chapter 

### 385,page 

### 870,provides as follows: "For the Years Ending August 

### 31, 1958 August 

### 31,

1959 "For Other Expenses-- "114.Food,medical supplies, stock feed, seed, fertilizer, insecticides, veterinary supplies, shoes, clothing and bedding, factory and shop materials, tires, tubes, gas, oil, repairs; office supplies,rents, water and **utilities,** postage onmaterial furnished t'o

Board of Pardons and Paroles,postage, telephone,telegraph, freight, express,drayage, per diem of board members, travel expense, transportationof prisoners, rewards, inquests, insurance,bond premiums, cleaning supplies, equipment,and co+ingencies

. . . . . 

### $l,o25,82g $;,o25,82g

. . . . . . At the time the above appropriationbill was enacted the cotton acreage allotment and the penalties accruing therefrom were not anticipatedby the Legislature,and, therefore, such ex ense constitutesa contingent expense,payable out of Item 11E. You are, therefore, advised that the Comptrollerof Public Accounts is authorized to Issue a warrant for the payment of suchpenalties.Honorable 0. B. Ellis, Page 3 ,(WW-~454).

SUMMARY The Comptroller of PublicAccounts Is authorized to issue a warrant for the payment of penaltiesnecessary for the Department of Correctionsto market cotton raised on the Texas Prison Farms In Brazorla County free and clear of existing liensby 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