### THEA-ITORNEY GENERAL OF TEXAS Ausn~. -

April 23, 

### 1948

Hon. Geo. R. Sheppard, Opinion No. 

### V-551 ComptrollerPublicAccounts, Austin, Texas Re: The authority of the Comptrollerof Public Accounts to waive limitationof. time within which claims for burial expenses for deceased widows of Confederate Veterans must be presented. Dear Sir:
Your request for an opinion upon the above titled subject matter is as follows: "This departmentis in receipt of a claim for the issuanceof mortuarywarrant under Article 6227, R.C.S., for the burial expenses of a deceasedwidow of a ConfederateVeteran. The claim and proof of death was not made to the. Comptrollerwithin 40 days from the date of the death of the pensioner. Because of the clad$m not having been made within the 40-day period this departmenthas refused to issue warrant. The questionhas arisen as to whether this departmentmay waive the limitation in Article 6227 and issue warrant in payment of the mortuary claimwhere such claim and proof of death is made and filed with this department more than 43 days after the death of the pensioner.
"The opinionwritten by J. V. Frnka, Assistant Attorney General,addressed to Mr. C. H. Cavness, State Auditor, covering the claim of Mrs. S.S. Williams,a pensioner,under H.B. 701, 49th Legisiature,partially covers this point, however it is argued by the claimant that this **op** inion is off-setby the Case of LimestoneCountyHon. Geo. H. Sheppard - Page 2 (V-55l.n)

vs. Robbins, 

### 38 S+lt2)588. I shall thank you to advise me whether or not this department may.waivethe limitationand issue warrant as above mentioned." Article 6227, as amended by the 48th Legislature, p. 187 (1943)contains the following:

Whenever any pensionerwho has been regularlyplaced upon the pension rolls under the provisionsof this law relatingthereto, shall die, and proof thereof shallbe made to the Comptroller within forty (40) days from the date of such death by the affidavitof the doctorwho attended the pensionerduring the last illness,or the undertakerwho conducted the funeral,or made arrangementstherefor, the Comptrollershall issue a mortuary warrant for an amount not exceedingOne Hundred ($100.00)

Ddllars payable out of the pension fund, in favor of the heirs or legal rep-. resentativesof the deceased pensioner,or in favor of the person or persons owing the accounts

. . . ."
It will be seen that the authorityof the Comptroller to issue a warrant is limited to those caseswhere proof of death has been made to him within forty days from the date of such death. It is familiar law that public officershave only such poder or a-Athority as shall be conferredupon them by law. By this test the Comptrollerhas no authorityor right in any event to issue his warrant in the absence of such proof of death requiredby the statute. This is jurisdictional and is conditionprecedentto issuing any warrant. See Brand v. Corner & McRea, 78 S.N. 2d 712.
In OpinionNo. 0-6500 this office advised you as to this precisepoint saying:

"In view of the foregoingauthorities,it is the opinion of this Department that the provisions of Article 6227 are mandatoryand that the Comptrollerof ?ublic Accounts is not authorized to issue a warrant in payment of a mortuary claim when the claim is not presentedwithin the forty day period;

. . .‘IHon. Geo. H. Sheppard - Page 3 

### (V-55l)

We adhere to the rule announced in Opinion No. 0-6500 and hold that you are without authorityto issue a warrant in payment of a mortuary claim under Article 6227 unless the properproof thereofhas been filed within the k0 days period of the statute.

The case of LimestoneCounty v. Robbins, 38 S.W. 26 580 mentionedby you has no bearing upon the present inquirybecause in that the case the question of limitation as a defensewas present and the Court specifically pointed out its pertinence.sayingr

*The privilegepossessedby a county to set up the statutesof limitationas a defense against a just debt emanates,from the Legislature, and is subject to the legislative will. The statutesof limitationbar the holder of the debt from access to the courts, but the debt is not extinguished. The removal of the bar does not impose a new debt against the county, or involvethe bestowal of a gratuity on the debt holder, but simply opens the way for the enforcementof the county(smoral obligation to pay the old debt."

In the present case we have held that no cause of action ever existed in the situationbefore us. YOU may not issue the warrant because no valid claim ba You are bound by thi 1'? existedunder the present law. as enacted by the Legislatureand have no authorityto waive any of its requirements.
SUMMARY
The Comptrollerof PublicAccounts is not authorizedunder Article 6227 of the Revised Civil Statutes as amended in 1943 to issue a warrant against the Mortuary Fund in favor of heirs where no proof as required by the Article was filed within the period of time the?ein provided.
Yours very truly,
ATTORNZY GENWAL OF T-&S 

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