Case Information

*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN GROVER SELLERS ATTORNEY GENERAL

Honorable George H. Sheppard Comptroller of Pab11e Aecounts Austin, Texas

Dear Sir:

Opinion No. 0-6500 Re: Is Comptroller of Pab11e Aecounts eathorived to issue a warrant in payment of a mortuary-sla1m where the elaim was not jpremented until after forty days had elapsed from the time of the death of the pensioner?

Your request for an opinion on the above question has been submitted to this department.

We quote from your letter as follows: "Article 6227, Revised Civil Statutes of 1925, reads in part as follows: "Whenever any pensioner who has been regularly pleased upon the pensions of law relating thereto, shall die and proof thereof, shall he need to the Comptroller within forty days from the date of such death by the affidavit of the doctor who attended the pensioner during the last 111ness, or the undertaker who eondented the funeral or made arrangements therefor, the Comptroller shall issue a mortuary warrant for an amount not exceeding one hundred ( $\$100.00$ ) Dollars, payable out of the pension fund, in favor of the heirs of legal representatives of the deceased pensioner, or in favor of the person or persons owning the accounts (proof of the existence and justice of such accounts to be made to said Comptroller under oath and in such form as he may require); for the purpose of paying the funeral expenses of the deceased pensioners."

*2 Hon. Geo. H. Sheppard, page 2 "I call your attention to the provisions of the above quoted statute, "and proof thereof shall be made to the Comptroller within forty days from the date of such death. . . .' "This department has construed that as a mandatory provision and has held that any olaim filled later than forty days after the death of the pensioner is barred by limitation. There are a number of olaims now pending for the payment of mortuary warrants where such limitation has rum, and the question has risen as to whether this forty-day provision in the statute is mandatory or directory. "I shall, therefore, thank you to advise whether this department is authorized to issue a warrant in payment of a mortuary olaim where the olaim was not presented until after forty days had elapsed from the time of the death of the.pensioner."

Section 1 of House Bill No. 89, Chapter 16, page 26, Acts of the 38 th Legislature, Regular Session, 1923, reads as follows: "Section 1. Whenever any pensioner who has been regularly placed upon the pension rolls under the provisions of law relating thereto, shall die and proof thereof shall be made to the commissioner of pensions within forty days from the date of such death, by the affidavit of the doctor who attended the pensioner during the last illnoss, or the undertaker who conduoted the funeral, or made arrangements therefor, the commissioner of pensions shall have authority to approve and have issued by the Comptroller of Public Accounts a mortuary warrant for an amount not exceeding sixty-five ( $\$65.00$ ) dollars, payable out of the pension fund, in favor of the heirs or legal representatives of the deceased pensioner, or in favor of the person or persons owing the accounts (proof of the existence and justiee of such accounts to be made to said commissioner under oath and in such form as he may require) for the purpose of paying the funeral expenses of the deceased penstoner. In such bases where a warrant for the pension for the quarter during which the pensioner died has been issued, the same shall be returned to the commissioner of pension,

*3 Hon. Geo. E. Ehepperd, page 3 who shall mark the same 'sancelled', and file it with the Comptroller of Pablle Aesounta before the mortuary warrant herein provided for shall issue. Where such warrant for the pension has not been issued, the same shall not be issued, but the mortuary warrant herein provided for shall take the place thereof."

This statute (Artiole 6227 V.A.C.S.) was amended by the 41st Legislature, Regular Session, 1929, so as to provide for a mortuary warrant not exceeding 8100.00 instead of 865.00 , and substituted the comptroller for commissioner of pensions whenever it was used in the Ast. Article 6227 was again amended by Acts 1943, 48th Leg., p. 187, oh. 108, 8 3, which you have correctly quoted in your opinion request.

Each of the three above statutes contained the following provisions: "Whenever any pensioner who has been regularly placed upon the pension rolls under the provisions of the law relating thereto, shall die and proof thereof shall be made to the . . . within forty 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 1923 set provided that the proof should be made to the commissioner of pensions, and the 1929 amendment and the present law both provide that the proof shall be made to the Comptroller.

Your department has construed the underlined portion of Article 6227, supra, "as a mandatory provision and has held that any claim filed later than forty days after the death of the pensioner is barred by limitation." In the case of Burroughs at al vs. Lyles, County Chairman, at al, 181 S. F. (2d) 570, the Supreme Court of Texas said: "This long-continued administrative construction is entitled to great weight, especially in view of the fact that the statute was amended as late as 1943, and the Legislature, which is presumed to have been aware of the interpretation, made no changes in the language that would indicate a contrary intent."

*4 The Comptroller's Department has construed the above portion of the Act aineo sometime in 1929, and the Legislature is presumed to have been aware of this interpretation, when they anended Article 6227 in 1943, and made no changes in the language that would imdicate a contrary intent. In feet a careful atudy of both the 1929 atatute, and the 1943 anendment thereto reveal that the Logislatere did not so much as ohange one word in the pertinent portion of the Act under consideration here.

Article 6227, supra, is very elear and definite, but if it did contain an ambiguity, we would have to look to the departmental construction of the atatute. In McCallum vs. Associated Retail Credit Men of Austin, 41 S. W. (2d) 45, the Comnission of Appeals of Texas in an opinion adopted by the Supreme Court atated: "The rule that a departmental ruling achered to through years of administering of a atatute will be given weight, only applies to atatutes of doubtful construction. Such a rule has no application to a atatute, such as this, that is not of doubtful construction or application. Rensy v. Tod, 95 Tex. 614; see body of opinion, page 626, 69 S. W. 133, 136, 93 Am. St. Rep. 875."

59 C. J. 1078 reads as follows: "A atatute apecifying a time within which a pablle of fioer is to perform an effleial act regarding the rights and duties of others, and made with a view to the proper, orderly, and prompt conduct of business, is asually directory, unless the phraseology of the atatute, or the nature of the act to be performed and the consequenoes of doing or falling to do it at such time, is such that the designation of time must be considered a limitation on the power of the offioer. So a atatute requiring a pablle body, merely for the orderly transection of business, to fix the time for the performanoe of certain acts which may as effectually be done at any other time is asually regarded as directory. But such rule of construction is not to be applied to the acts of private parties when the law to be construed creates no new right or remedy, but is designed to regulate one already existing. So under atatuted conferring priviloges on private individuals for a certain period of time, such priviloges cannot be exereined after the lapse of the time allowed."

*5

Bon. Geo. H. Shepperd, page 5

In view of the foregoing authorities, it is the opinion of this department that the provisions of Articlo 6227 are mendatory and that the comptroller of Puhlio 40 oounts is not authorized to issue a werrant in payment of a mortuary oleim when the oleim is not presented within the forty day period; however, we are merely passing upon the atatute as it now oxiste, and there is no law to prohibit the present Legislature from anending the ame.

Very truly yours, ATTORNEY GENERAL OF TEXAS

By: J. C. Davis, Jr.

S. C. Davis, Jr. Asel atant.

JDDirt