Untitled Texas Attorney General Opinion ( 1973 )

THE AVTORNEY GEMCWAL
OFTEXAS
Colonel Wilson E. Speir, Director Opinion No. H- 54
Texas Dept. of Public Safety
Box 4087 Re: Whether or not Article 6687b,
Austin, Texas 78773 $16, and Article ‘6701b, $ 38,
require sworn verification of
each invoice by vendor as a
Dear Colonel Speir: prerequisite to disbursing funds.
Your request for an opinion of this office asks: “Is an affidavit by
the vendor required for each claim paid from the Operator’s and Chauffer’s
License Fund?”
You state that the Comptroller of Public Accounts has informed the
Department of Public Safety that no payments can be authorized from this
fund unless each invoice is accompanied by the itemized sworn statement
of the vendor. Formerly your Department had submitted vouchers for
disbursement each accompanied by a group of invoices supported by a
certification (instead of affidavit) of the vendor as authorized by Article
4357(a), V.T.C.S.
Article 4357(a), as amended in 1967, provides in part:
“No warrant shall be prepared except on presentation
to the warrant clerk of a properly audited claim, certified
to its correctness, . . . and such claims so certified and
audited shall be sufficient and the only authority for the
preparation of a warrant or warrants . . . . ” Acts 1967,
60th Leg., p. 340, Ch. 163.
The emergency clause of this Act states that #I[t]he fact that affidavits
required to be appended to claims against the State are no longer needed
and the need for the provisions of this Act in order to provide a more
economical and adequate system of handling claims against the state create
an emergency . . . . ”
p. 224
Colonel Wilson E. Speir, page 2 (H-54)
There is also a provision that I#[a]11 parts of laws in conflict with
the provisions of this Act are hereby repealed to the extent of conflict only. ‘1
A certification differs from an affidavit in that it is a statement of
fact or facts not sworn t.0. Attorney General Opinion M-96 (1967).
The Comptroller’s recent request that your Department submit
vouchers accompanied by affidavits from each vendor on each claim is
based (according to his letter) on two statutes passed in 1941 and 1951,
respectively, which relate specifically to disbursements from the Operator’s
and Chauffer’s License Fund.
Article 6687b, 5 16 reads:
“All disbursements hereunder shall be by warrant
issued by the Comptroller upon vouchers drawn by the
chairman of the Department of Public Safety Commission
and approved by one other member of the Commission or
the Director, a,nd such vouchers shall be accompanied by
itemized sworn statements of the expenditures for which
they are issued. ”
Article 6701h, $ 38, is virtually identical. It too requires “itemized
sworn statements of the expenditures. (’ In requesting the change from
certification by the vendor to affidavit, the Comptroller has explained
in his letter to us dbted March 6, 1973:
“From time to time, my staff has found additional
statutory requirements req,ulring an affidavit governing
expenditure out of certa,in types of funds. In each in-
stance where the provision was found, the department
involved has been ask.ed to comply with these provisions. I’
It has been settled in prev;ous oI.~r,;~.xs issued from this office that
the 1971 amendment to Article 655, V. T. C. S., has eliminated the require-
ment that vendors certify or swear to the acciiracy of invoices on purchases
by State agencies through the State Board of Control. Instead, Articles 655
and 657 require the recei,ving agency, through its authorized personnel, to
check the delivery against the invoice and certify its correctness to the Board
of Control. See Attorney General Opinions M-893-a and M-934 (1971).
p. 225
Colonel Wilson E. Speir, page 3 (H-54)
Therefore we interpret your question to be: “Is an affidavit by the
vendor required for purchases not made through the State Board of
Control? ”
In answering this question we note this fact: prior to 1967, Article
4357, V. T. C. S. , required affidavits on every claim submitted to the
Comptroller for payment. The Legislature, in amending Article 4357
in 1967, clearly stated that “affidavits required to be appended to claims
against the state are no longer needed” and generally repealed all laws
in conflict with the new requirement of Article 4357 to the extent of
conflict. Furthermore, prior to 1967. the affidavit requirement, found
in Articles 6687b. $16 and 6701h. $ 38, was not a special requirement
applicable only to disbursements from the Operator’s and Chauffer’s
License Fund. Rather, the language in those articles merely restated
what was, until 1967, the general legislative policy regarding payment of
all claims against the State.
Was the affidavit requirement in Articles 6687b, $16 and 6701h, $ 38
repealed by the Act amending Article 4357 ? The Supreme Court has said
that ‘I . . . since the effect of a general provision repealing conflicting
laws evinces that the Legislature had in mind that something was to be
repealed, the ‘courts will be less inclined against recognizing repugnancy
in applying such statutes’ . . . .I’ Gaddis v. Terrell, 110 S.W. 429 (Tex.
1908). The general test is that the earlier statute must be found repugnant
to provisions of the new enactment. Jefferson County v. Board of County
District Road Indebtedness, 182 S.W.2d 908 (Tex. 1944); Garrett v. State,
279 S.W.2d 366 (Tex. Crim. App., 1955).
In our opinion the Legislature intended that its general repeal of
parts of laws in conflict with Article 4357 would effectuate a repeal of the
affidavit requirement in those Articles relating to disbursements from
the Operator’s and Chauffer’s License Fund. In fact, the Comptroller’s
office has, since 1967, issued warrants against the Fund when invoices
are merely certified to their correctness by the vendor. A long-standing
administrarive practice of this kind is entitled to great weight. Burroughs
v. Lyles, 181 S.W.2d 570 (Tex. 1944); Calvert v. Cadane. 427 S.W.2d 605
(Tex. 1968).
Attorney General Opinion M-934 in finding that certification by the
vendor was no longer required on purchases through the State Board of
Control, held that affidavits by the vendor were still required “in such
p. 226
Colonel Wilson E. Speir, page 4 (H-54)
special Articles as 6145-8(40) and 4387~. V. T. C. S. ” This holding was
on the authority of Opinion M-96 (1967) which, in construing the effect
of the general repeal provision of Article 4357, stated that II[ o]nly the
requirement contained in Article 4357 was repealed and there is no
language contained in House Bill 362 to indicate that the Legislature in-
tended to modify existing requirements relating to specific affidavits on
certain sworn accounts. ”
As we observed above, prior to 1967 the affidavit requirement was
not unusual or special, but was required of all claims against the State.
Therefore in reviewing the language of House Bill 362 we believe the
Legislature intended that the plain meaning of its words would be given
effect: namely, that “affidavits appended to claims against the state are
no longer needed” and were eager to encourage “a more economical
and adequate system of handling claims against the state. ” M-934 and
M-96 are overruled insofar as they conflict with this opinion.
As a matter of information, the 63rd Legislature has amended
Article 6145-8(40). which has been the only statute passed since 1967 re-
quiring “sworn statements of expenditures. ” The provision now reads:
“All payments made from the ‘Bicentennial Fund’ shall be approved by
the chairman of the commission, and be by state warrants drawn on
such fund in the usual manner and form. ‘I Senate Bill 889, (Acts 1973,
63rd Leg. ).
Our answer to your question is: Vendors do not have to make affidavit
of the accuracy of thei., invoices, but may continue to certify their accuracy
as they have done since the 1967 amendment to Article 4357.
SUMMARY
Purchases through the State Board of Control
by the Department of Public Safety are governed by
Articles 655, et seq., which require the receiving
agency to certify the accuracy of the vendor’s invoice.
Other purchases requiring disbursements by the
p. 227
Colonel Wilson E. Speir, page 5 (H-54)
Comptroller from the Operator’s and Chauffer’s
License Fund must be accompanied by the vendor’s
certification of the invoice’s accuracy in the usual
manner and form required by Article 4357(a) as
amended in 1967.
Very truly yours,
u Attorney General of Texas
DAVID M. KENDALL, Chairman
Opinion Committee
p. 228