Deal-kit'.

In wblch**OFFICE OF**  **THE ATTORNEY**  **GENERAL OF**  **TEXAS**
**AUSTIN**

March 7, 1938

Donorablc Ceow ii.Bheppord Comptroller of Public Accounts **Auetln, Texas** 

Ghpparda

This IS IA QAswer t f February 24, l9!B, you say:

he Refund SusIs department 8 required to ce claim, under

that before which you attached to your Oil Distributing:Company,

distributor, In the SusInArticle which provides motor fuel disparaqraph (a), which 1s as followa~

.That In lieu of giving?a bond, any distributornay deposit in the Suspense Account of the state Treasury,money in the amount of the bond thatmay be required, which shall AOVer be released until securltlos are substituted for the same or abond oseouted **in** lieu thereof, or until the Comptroller hasmade a60~. Goo. B. Sheppard, maroh 7, l939,Page 2

complete and thorough investigation and authorized the a&se tobe released; 4 l a*
It appears that the Texas Star Oil DletributiAg Cornpany has ceased operations and Isnot indebted to the State, and the comptroller has authorized this sumof ~l.,OOi1.00 tobe released.
You doslre to know whether or Aowlcle.4346 applies t.41 this aocount. The nlrmberof this Article In theyeaFlQ17 was 4336; and It was construed in anAttorney 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 thatwe believeMr. TaylOr'a OpiniOA aASWOrt3 yOUr qUeStiOA, and that its reasoning 1s unquestionably eound, we are adopting the entire opinion, lrndquoting it as fol~owsr

'GOA. Y. D. cope, Care Investigating Conm~itteeNo. 6, Capitol. Dear slrt **The Attorney**  Goneral **has** your lottcr of Dcoember 16th, asltlngfor a construotiOA 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 Secretaryof State.--The acoount of the Comptroller against the State shallnot be passed to the Treasureruntil approvedby the Secretary of State.,
.So far as we arc able to detenr,lncthe 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 determine Itsmeaning.
"We find that thisprovision 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 todefine the duties of the ;~x~~oller of Pub110 Accounts of the Stateof

, such seotionbeing 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

### tweenthepresent Statute and that of 184a **is that**  the word *account.,in thepresent Statute Is In tho singular, whhiltin theAct of lfi46the snme word appears In theplural. This Is an imaterlal varlauce between the two articles for the reason that under our rules of construction the eingular and theplural number shall each Include the other unless othcrwlee expressly provided. (SeeArtlolo 66C2 Revised Statutes of f811).
l Seotion 16 of the Act of 1846 became Article 143 of Bartley,e Digest of theLaws 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 aportion of the Statutes of this State this Artlolo appearswith the word ,oocount, jn the slnguLar form Otherwise it is identical with theAct 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 andbookkeeping and audltlng for said department with the other departments and officers of the govermont. This Act espresely repealed all Articles contained in Chapter 2 of Title 62 of the Statutes of ID26 inwhich Ch&or aud Title is tobe found Article 2843 abo?e referred to. Scotion la,however, of thisAct 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 thoprovision appears in the Statutes of l9lL The above history of this 1eglslatlon shows thisprovision tobe continually Q, force In this State frox the date of its erlginti t?nnob?JCAt

i 1840.Bon. 000. H. Sheppard,Uarch I, lSo30, Page 4

aComing nowto thepurpose andncanlncrof this statutoryprovision, 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 thepayment thoroofhave been mado by law, unless **the audit**  ing of any such clnin shallbe otherwise specially provided for.
.Thc Comptroller thusbeing mado the auditor of accounts against the Stateproscntod for payment, it appears that unless some other authority Is authorized to audit accounts filed by the Comptrol-, ler's department no such audit oouldbc made, and it is our opinion that theLegislature by enacting what isnow Article 4336 intended thatall account drawn by the Comptroller or his department against the State shouldbo audited by the Secretary of Statebefore 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 topresent to the Secretary of State for his approval all acoounts against the State in favor of the Comptroller, or his department, or anymanber thereof, **and** thatbefore warrants arc drawn by the Comptroller the accounts upon whioh the eamc arebased should

. bear the approval of the SeCretdry of State." This oglnlon.wrltten during Attorney General Looncyts arloinlstrationah6ws that the statutes in regard to this question were the s(u;le

then as they arc now- The Comptroller (asnow provided inArticle 4344) shallbc the auditor of all clajms against the State) but in order for some one to check the Comptroller it was provided in thenext article (nowArticle 434S7- and forurorlyArticle 4336) that **the claims**  **in** favor of the Camptroller, those inwhich he would be intcrestcd, shouldbe approved by the Secretary of State.

Our answer to your question is that Article 4345 (formerlyArticle 4336) requires that the Secretary of State apprtiveall accounts against the State in favor of the Conptroller, or his dopartrzcnt,or anymabcr thereof,but that the *clearance for rcfun@' which you subriittedtous 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, iiarch7, lam, Page 6

Yours vory truly ATTORNEXGENERALOFTEXAS

By &@bCccll C. Rotsoh

Assistant

APPROVED: