Untitled Texas Attorney General Opinion ( 1939 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUOTIN Harch 16, 1939 Hon. Orville S. Carpenter Chairman and Exeoutlve Director Texas Unemployment Compensation Commission Austin, Texas Dear Sir: Opinion No. O-3S5 Gg0a unempr’p;- ) Tie are 20th in which has the authority ployment compensat the following circ employment Com- to the State names of per- nd the amounts of are entitled. The warrants have been re- person other than the they are payable and have been such person not entitl- ed thereto on the forged indorsement of the payee. If such forgeries are discovered before the forged warrqnts are presented to the State Hon. Orville S. Carpenter, March 16, 1939, Page 2 Treasurer, payment is refused; where the for'gery is not aiscover8a until after payment has been made by the Treasurer, .the warrant is promptly returned to the lndorsers there- or. In any case, payment is either never made, or, if made, is always recovered. There seems to be some question, however, as to the authority of the State Comptroller to issue to the proper payee a duplicate of such forged warrant. Will you please aavise us, therefore, if the State Comptroller is authorized to issue duplicates of such forged warrants? The Comptroller of Public Accounts of the State of Texas must look to the written law of the state for his authority to issue duplicate warrants. His power is circumscribed by statute. drticle 4365, R.C.S. of Texas, 1925, defines the extent and limita- tion of that power. said section reads as follows: “The Comptroller, when Satisfied that any original warrant drawn upon the State Treas- urer has been lost or destroyed, or when any certificate or other evidence of indebtedness approved by the auditing board of the State has been lost is authorizea to issue a dupli- cate warrant in lieu of the original warrant or a duplicate or a copy of such certificate, or other evidence of indebtedness in lieu of such original; but no such duplicate warrant, or other evidence of indebtedness, shall is- sue until the applicant has filed with the Comptroller 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 ComptrOl- ler, ana conditioned that the applicant will Hon. Orville S. Carpenter, Yarch 16, 1939, Page 3 hold the State harmless and return to the Comptroller, upon demand being made thereror , such duplicate6 or copies, or the amount of money named therein together with all costs that may accrue against the State on colleot- ing the same. dfter the issuance of said duplicate or copy if the Comptroller should ascertain that the seme was improperly issued, or that the applicant or party to whomthe same wns issued was not the owner thereof, he shall at once demand the return of said aupli- cat8 or copy if unpaid, or the amount paid out by the State, if so paid; and, upon failure of the party to return same or the amount of money called I or, suit shall be instituted upon said bona in Travis County.” The statutes of the state are silent upon the authority of the Comptroller to issue duplicate war- rants except in the express instance of loss or destruc- . tion. Consequently, where a warrant is still in exist- ence, and the procedure outlined in the above quoted article, including filing of applicant’s bona, has not been followed,’ the Comptroller has no authority to’ is- sue a duplicate. Yðer the forged warrant has been paid by the State Treasurer or not, the rightful ayee has no claim upon the State Comptroller for a dupl Pcate in the ab- senoe of proof that the original instrument has been .lost or destroyed. RI6 only redress is against the wrongdoers guilty of the forgery regardless of the hara- ship this form of remedy places upon him. According to 34 T8X. SW. p. 636: “d state, municipal, county, district or school warrant is an instrument, generally in the form of a bill of exchange or Order, drawn . by an officer upon the person having charge of the public funds, directing him t0 pay an amount of money specified to the person named, or his order, or to bearer. In substance war- rants are mere promises to pay the amount Hon. Orville S. Carpenter, Karch 16, 1939, fage 4 specifiecl; they are not bonds, nor are they negotiable instruments* they are only prima facie evidencea of an &.iebtedness, serving as a convenient mode of conducting the public business." The original payee remains the rightful owner of the warrant and is legally entitled to recover it from the possessor despite successive indorsements. It is our opinion that Article 4365 prohibits the issuance of a duplicate warrant where the loss or destruction of the original has not been called to the ,I attention and proven to the satisfaction of the Comp- [ troller in the manner provided in said statute. Trusting that this answers your ,inquiry, we are Yours very truly ATTORNEY CEMGLOF TEXAS