THEA-ITORNEY GENERAL 

OF TEXAS 

Ausn~. - 

April 23, 1948 

Hon. Geo. R. Sheppard, Opinion No. V-551 

Comptroller Public Accounts, 

Austin, Texas Re: The authority of the 

Comptroller of Public Accounts to 

waive limitation of. 

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 department is in receipt of a claim for 

the issuance of mortuary warrant under Article 

6227, R.C.S., for the burial expenses of a deceased widow of a Confederate Veteran. The 

claim and proof of death was not made to the. 

Comptroller within 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 department has refused to issue 

warrant. The question has arisen as to whether this department may waive the limitation in 

Article 6227 and issue warrant in payment of 

the mortuary claim where such claim and proof 

of death is made and filed with this department 

more than 43 days after the death of the pensioner. 

"The opinion written 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 opinion is off-set by the Case of Limestone County 
Hon. 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.waive the limitation and issue warrant 

as above mentioned." 

Article 6227, as amended by the 48th Legislature, p. 187 (1943) contains the following: 

Whenever any pensioner who has been 

regularly placed upon the pension rolls under the provisions of this law relating thereto, shall die, and proof thereof shall be made 

to the Comptroller within forty (40) days from 

the date of such death by the affidavit of 

the doctor who attended the pensioner during 

the last illness, or the undertaker who conducted the funeral, or made arrangements therefor, the Comptroller shall issue a mortuary 

warrant for an amount not exceeding One Hundred ($100.00) Ddllars payable out of the pension fund, in favor of the heirs or legal rep-. 

resentatives of the deceased pensioner, or in 

favor of the person or persons owing the accounts . . . ." 

It will be seen that the authority of 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 

officers have only such poder or a-Athority as shall be conferred upon them by law. By this test the Comptroller has 

no authority or right in any event to issue his warrant in 

the absence of such proof of death required by the statute. 

This is jurisdictional and is condition precedent to issuing any warrant. See Brand v. Corner & McRea, 78 S.N. 2d 

712. 

In Opinion No. 0-6500 this office advised you as 

to this precise point saying: 

"In view of the foregoing authorities, it 

is the opinion of this Department that the provisions of Article 6227 are mandatory and that 

the Comptroller of ?ublic Accounts is not authorized to issue a warrant in payment of a mortuary claim when the claim is not presented within the forty day period; . . .‘I 
Hon. Geo. H. Sheppard - Page 3 (V-55l) 

We adhere to the rule announced in Opinion No. 

0-6500 and hold that you are without authority to issue 

a warrant in payment of a mortuary claim under Article 

6227 unless the proper proof thereof has been filed within the k0 days period of the statute. 

The case of Limestone County v. Robbins, 38 S.W. 

26 580 mentioned by you has no bearing upon the present 

inquiry because in that the case the question of limitation as a defense was present and the Court specifically 

pointed out its pertinence.sayingr 

*The privilege possessed by a county to 

set up the statutes of limitation as a defense 

against a just debt emanates,from the Legislature, and is subject to the legislative will. 

The statutes of limitation bar 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 involve the bestowal of a gratuity 

on the debt holder, but simply opens the way 

for the enforcement of the county(s moral obligation to pay the old debt." 

In the present case we have held that no cause 

of action ever existed in the situation before us. YOU 

may not issue the warrant because no valid claim ba 

existed under the present law. You are bound by thi 1'? 

as enacted by the Legislature and have no authority to 

waive any of its requirements. 

SUMMARY 

The Comptroller of Public Accounts is not 

authorized under 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 

By %-ip&~ 

Assistant