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 SusIn Article 

which provides 

motor fuel disparaqraph (a), 

which 1s as followa~ 

.That In lieu of giving? a bond, any distributor nay deposit in the Suspense Account 

of the state Treasury, money in the amount of 

the bond that may be required, which shall 

AOVer be released until securltlos are substituted for the same or a bond oseouted in lieu 

thereof, or until the Comptroller has made a 
60~. Goo. B. Sheppard, maroh 7, l939, Page 2 

complete and thorough investigation and authorized the a&se to be released; 4 l a* 

It appears that the Texas Star Oil DletributiAg Cornpany has ceased operations and Is not indebted to the State, and 

the comptroller has authorized this sum of ~l.,OOi1.00 to be released. 

You doslre to know whether or Aowlcle.4346 applies 

t.41 this aocount. The nlrmber of this Article In the yeaFlQ17 

was 4336; and It was construed in an Attorney 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 construing this statute. IA view of the fact that we believe Mr. 

TaylOr'a OpiniOA aASWOrt3 yOUr qUeStiOA, and that its reasoning 

1s unquestionably eound, we are adopting the entire opinion, 

lrnd quoting it as fol~owsr 

'GOA. Y. D. cope, Care Investigating 

Conm~ittee No. 6, 

Capitol. 

Dear slrt The Attorney Goneral has your lottcr of Dcoember 16th, asltlng for 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 Secretary of State.--The acoount 

of the Comptroller against the State shall not 

be passed to the Treasurer until approved by 

the Secretary of State., 

.So far as we arc able to detenr,lnc the 

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 Its meaning. 

"We find that this provision 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 to define the duties of the 

;~x~~oller of Pub110 Accounts of the State of 

, such seotion being 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 between the present Statute and that of 184a is that 

the word *account., in the present Statute Is In 

tho singular, whhilt in the Act of lfi46 the snme 

word appears In the plural. This Is an imaterlal varlauce between the two articles for the 

reason that under our rules of construction the 

eingular and the plural number shall each Include 

the other unless othcrwlee expressly provided. 

(See Artlolo 66C2 Revised Statutes of f811). 

l Seotion 16 of the Act of 1846 became Article 

143 of Bartley,e Digest of the Laws 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 a portion of 

the Statutes of this State this Artlolo appears with 

the word ,oocount, jn the slnguLar form Otherwise 

it is identical with the Act 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 SystcPn of aooomtlng and bookkeeping 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 in which 

Ch&or aud Title is to be found Article 2843 abo?e 

referred to. Scotion la, however, of this Act 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 tho provision appears 

in the Statutes of l9lL The above history of this 

1eglslatlon shows this provision to be continually 

Q, force In this State frox the date of its erlginti t?nnob?JCAti 1840. 
Bon. 000. H. Sheppard, Uarch I, lSo30, Page 4 

aComing now to the purpose and ncanlncr of this 

statutory provision, 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 the payment 

thoroof have been mado by law, unless the auditing of any such clnin shall be otherwise specially 

provided for. 

.Thc Comptroller thus being mado the auditor 

of accounts against the State proscntod for payment, 

it appears that unless some other authority Is 

authorized to audit accounts filed by the Comptrol-, 

ler's department no such audit oould bc made, and 

it is our opinion that the Legislature by enacting 

what is now Article 4336 intended that all account 

drawn by the Comptroller or his department against 

the State should bo audited by the Secretary of 

State before 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 to present to 

the Secretary of State for his approval all acoounts against the State in favor of the Comptroller, or his department, or any manber thereof, and 

that before warrants arc drawn by the Comptroller 

the accounts upon whioh the eamc are based should . 

bear the approval of the SeCretdry of State." 

This oglnlon.wrltten during Attorney General Looncyts 

arloinlstration ah6ws that the statutes in regard to this question 

were the s(u;le then as they arc now- The Comptroller (as now 

provided in Article 4344) shall bc the auditor of all clajms 

against the State) but in order for some one to check the Comptroller it was provided in the next article (now Article 434S7- 

and forurorly Article 4336) that the claims in favor of the Camptroller, those in which he would be intcrestcd, should be approved by the Secretary of State. 

Our answer to your question is that Article 4345 

(formerly Article 4336) requires that the Secretary of State 

apprtive all accounts against the State in favor of the Conptroller, or his dopartrzcnt, or any mabcr thereof, but that 

the *clearance for rcfun@' which you subriitted to us 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, iiarch 7, lam, Page 6 

Yours vory truly 

ATTORNEX GENERAL OF TEXAS 

By &@bCccll C. Rotsoh 

Assistant 

APPROVED: