SE   ATT~KNEY                  GENERAL
                                QIF TEXAS

PRICE   DANIEL
ATTCIRNEYGENERAL
                                   November 15, 1950


       Hon. T. S. Painter,  President
       The University  of Texas
       Austin, Texas                          Opinion    No. V-1119

                                              Re:    Authority   of the
                                                     Comptroller   of Pub-
                                                     lic Accounts    to is-
                                                     sue a duplicate
                                                     warrant without get-
                                                     ting a bond from the
                                                     payee when the orig-
                                                     inal warrant never
       Dear Dr.    Painter:                          reached the payee.

                     Your request      for an opinion      reflects   that The
       University     of Texas purchased         from an out of State com-
       pany certain      printing     and press equipment in the total
       sum of $14,222.72.          Based on a proper invoice,         this pur-
       chase was vouchered         for payment on February 16, 1950,
       and thereafter,       on February 23, 1950, the State Comp-
       troller    of Public Accounts         issued State Warrant No.
       532026, drawn on the State Treasury,              in the sum of $14,-
       222.72,    payable to the company in question.               The war-
       rant was delivered         to the office      of the Auditor    of The
       University     of Texas on February 28, 1950, and the Au-
       ditor's    records    reflect     that the warrant was mailed to
       the company on March 1, 1950.

                   Subsequently  the University  was notified  by
       the company that it had not received     payment of Its ac-
       count.    It was then developed  that the warrant had been
       misplaced   or lost in some unknown manner.

                   The company has demanded that a duplicate         war-
       rant be issued.       The University    has advised the company
       thet a duplicate      warrant can only be issued by the State
       Comptroller   in accordance      with the requirements   of Arti-
       cle 4365, Revised Civil       Statutes,   1925, which, among
       other things,    requires    the filing   of a bond by the true
       owner of the original       warrant in double the amount of
       the claim.    The company, upon advice       of its counsel,
       has refused    to file    the bond on the ground that it
       never received    the warrant and that the statute       only
Hon. T. S.    Painter,     page    2    (V-1119)



applies   to original   warrants which have been actually
delivered   and received   by the payee.  Thus it is con-
tended that the lost warrant Is not an “original      war-
rant, ” but if so, the State is the “true owner.’

           Based upon the above facts    you have asked
whether the Comptroller  can legally   issue a duplicate
warrant to the company in question    without a compliance
on its part with the requirements    of Article  4365.

             Article     4355,    V.C .S.,   provides   in part:

               “The Comptroller,     when satisfied      that
      any original       warrant drawn upon the State
      Treasurer      has been lost or destroyed,         . . .
      is authorized       to issue a duplicate      warrant
      in I.ieu of the original         warrant . .      * but
      no such duplicate        warrant    . . . shali’issue
      until     the applicant    has filed     with the Comp-
      troller     his affidavit,     stating    that he is the
      true owner of such instrument,            and that the
      same is in fact lost or destroyed,            and shall
      also file      with the Comptroller       his bond in
      double the amount of the claim with two or
      more good and sufficient          sureties,   payable
      to the Governor,        to be approved ,by the Comp-
      trol.ler,    and conditioned      that the applicant
      will hold the State harmless and return to
      the Comptroller,        upon demand being made there-
      for,    such duplicates      . . . or the amount of
      money named therein,        together     with all costs
      that may accrue against          the State on collect-
      ing the same.        . . .”

            The purpose of this statute    is clear.   It is to
authorize   the drawing of a second or duplicate     warrant in
those cases where the first    or original   State warrant le-
gally   drawn was subsequently  lost or destroyed.

             Article   4355 prescribes     the conditions   and re-
quirements under which the State Comptroller           may execute
a duplicate    warrant “in lieu of ,” to take the place of,
the original     warrant.    His authority     to draw a duplicate
State warrant is fixed and limited          by the terms of that
statute.     Att’y   Gen. Ops. 0-385 (1939),      O-2002 (19&O),
o-2151 (1240).       It expressly   provides    in mandatory langu-
age that     no such duplicate     warrant . . . shall issue un-
til  the applicant”     by his affidavit     to the Comptroller
Hon. T.    S.   Painter,   page 3   (V-1119)



states   (1) "that he is the true owner of the instrument,"
(2) "that the same is in fact lost            or destroyed."      It re-
quires  that the applicant       "shall   also file            his bond
in double the amount of the claim" in confo&&e                  with
that law.    No discretionary       authority    is vested in the
State Comptroller,     expressly      or by Implication,      to dis-
pense with the bond required          of the applicant-afflant
thereunder.      True, the applicant        may or may not have had
part in the loss or destruction          of the original     warrant.
However, the importance       to the State of having its public
moneys protected     outweighs     the infrequent     inconveniences
caused the Individual.        Att'y    Gen. Op. O-3617 (1941).        In
any such event,    the Legislature       has not seen fit      to bur-
den the State Comptroller       with the onerous duty to de-
termine in whom the fault        for the loss or destruction
lies.   The law is beneficial        to both the lawful      owner and
the State.

             "Original   warrant"   as used in Article      4365, we
thinlc, means the first      warrant issued by the State Comp-
troller    pursuant to a proper and particular         claim g;s;nt-
ed by a competent authority.         Further,    the phrase
owner of such instrument"       in that law refers       to the payee
designated     on the original    warrant or any other person,
firm or corporation      who can show he is the present         true
owner by virtue      of an assignment    thereof    or otherwise.
Att'y   Gen. Op. O-2489 (1940).

           Article   4365 was first     enacted in 1910.      H.B.
13, Acts 31st Leg.,    3rd C.S. 1910, ch. 17 p. 37. More
recently,  in 1943, House Bill      247, Acts 46th Leg.,      1943,
ch. 298, p. 441 (Art.     7065b-13,   V.C.S.) was passed.       This
law among other matters authorizes        the State Comptroller
to draw warranis for motor fuel tax refunds         to certain
claimants.   Section   (g) of Article     7065b-13,   supra, pro-
vides in part:
      " . . . If the claimant has lost or loses,         or
      for any reason failed     or fails   to receive    %ir-
      rant after    warrant was or has been issued       by
      theComptroller,      and upon satisfactory     proof    of
      such, the Comptroller     may Issue claimant      dupli-
      cate warrant as provided     for in Article     4365,
      Revised Civil    Statutes  of Texas of 1925."        (Ru-
      phasis added.)

             This latter   legislative expression on the is-
suance    of duplicate   warran@ for motor fuel tax refunds
Hon. T. S.   Painter,   page   4 (V-1119)



coincides  with   our construction      of Article      4365 consld-
ered herein.

           Under the submitted    Pacts,  It is our opinion
that the State Comptroller    cannot legally    issue a dupli-
cate warrant to the company in question       in payment of
the above account without a compliance       by this concern
with the requirements  of Article     4365. Att'y Gen. Op.
O-2305 (1940).

                            SUlNARY

              The State Comptroller     of Public Accounts
      may issue a duplicate      warrant in lieu of an
      original    warrant lost    or destroyed   only in
      accordance     with the mandatory requirements       of
      Article    4355, V.C.S.    Art. 7065b-13       Sec. (g),
      v.c.s    * Att'y   Gen. 0 s. 0-385 1939 ,. O-2002
      (194Oj:    O-2161 (19407,    O-2305 I 1940 I .

APPROVED:                                   Yours     very   truly,

J. C. Davis, Jr.                               PRICE DANIEL
County Affairs   Mvislon                    Attorney  General

Everett   Hutchinson
Executive   Assistant

Charles D. Mathetrs                         Chester     E. Ollison
First Assistant                                          Assistant

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