Untitled Texas Attorney General Opinion ( 1988 )

THE ATTORNEY GENERAL
OF TEXAS
Wh 14, 1988
Honorable Bob Bullock Opinion NO. J&872
Comptroller of Public
Accounts Re: Authority of State Auditor
L.B.J. Building and Legislative Audit Committee
Austin, Texas 78774 to conduct economv and efficiencv.
audits and effectiveness audits
under section 321.0133 of the
Texas Government Code, and
related questions (RQ-1279)
Dear Mr. Bullock:
YOU ask six questions regarding the proper construc-
tion and constitutionality of two recently enacted bills
that.set forth responsibilities and authority' of the
State Auditor and the Legislative Audit Committee. The
Committee comprises the Lieutenant Governor,.the Speaker
of the House, and the chairmen of the Senate State Affairs
Committee, the Senate Finance Committee, .the House
Appropriations Committee, and the House Nays and Means
Committee. See Gov't Code 9321.002. Several of your
questions ra= issues that have not been addressed yet
specifically in any court case or any Attorney General
opinion in Texas: these are issues of first impression.
The first bill with which you are concerned, House Bill
No. 699 [hereinafter H.B. 6991 amends the Government Code
by adding several sections to chapter 321 governing the
State Auditor and the Legislative Audit Committee,
including sections 321.0133, 321.0134 and 321.016, that
define specifically the sorts of audits that the auditor
may conduct with the approval of the committee. Acts
1987, 70th Leg., .ch. 862, 56 at 5876-5889. The second
bill with which you are concerned, House Bill No. 2181
[hereinafter H.B. 21811, amends sections 51.005 and 61.065
of the Education Code, and purports to confer joint
rulemaking authority on the State Auditor and the College
Coordinating Board. Acts 1987, 70th Leg., ch. 823,
§§3.06, 4.02, at 5712-13, 5725-26. Before we turn to your
first question, we first present a brief history of the
position of State Auditor in order that we may place in
perspective the scope of the 1987 amendments.
p. 4225
.,i
Honorable Bob Bullock - Page 2 (``-872)
?
The position of "State Auditor and Efficiency
Expert," an executive branch officer appointed by the
Governor ', was created in 1929.1 Acts 1929, 41-d Leg., 1st ?
C-S., ch. 91, at 222. He was to be '*an investigator of
all custodians of public funds and disbursing officers ,of
the State and personnel of departments." Acts 1929, 41st
L-3., 1st C.S., ch. 91, 51, at 222. He was granted the
authority "to inspect all the books and records of all the
officers, departments and institutions of the State
Government" and to "investigate the efficiency of the the
personnel and clerical forces thereof." Acts 1929, 41st
L-3. I 1st C.S., ch. 91, 53, at 223. Section 4 of the act
provided the following:
In addition to the other duties provided
for said Auditor, he shall thoroughly
examine all departments of the State
Government with special regard to their
activities and the duplication of efforts
between departments, and the efficiency of
the subordinate employees in each of such
several departments. He shall examine into
the work done by the subordinate employees
in the several departments of .the State
Government.
Upon completing the examination of any
department he shall furnish the head of said
department with a report on (a) the effi-
ciency of the subordinate employees; (b) the
status and condition of all public funds in
charge of said department; (c) the amount of
duplication between work done by the depart-
ment so examined and other departments of
the State Government: (d) such a system of
accounts as will provide for a uniform
system of auditing, bookkeeping, and system
1. We note that section 402.026, Gov't Code,
reposes responsibility in the Attorney General, inter
u, to inspect monthly "the accounts of the offices of
the state treasurer, comptroller, and each other person
responsible for collection or custody of state funds." It
appears that this provision, which was first enacted in
1879 and subsequently recodified three times before its
inclusion in the non-substantive recodification of the
Government Code in 1985, heretofore has not been enforced.
p. 4226
Honorable Bob Bullock - Page 3 (J&872)
of accounts for every department of State.
He shall also make recommendations to the
said head of the departments for the
elimination of duplication and inefficiency.
A copy of each such report submitted by said
officer to the head of the department shall
be forthwith furnished to the Governor, the
Speaker of the House, and the President of
the Senate. Nothing contained herein shall
be construed as authorizing the State
Auditor to employ or discharge any state
employee other than those herein authorized
to be appointed by him for his department.
Acts 1929, 41st Leg.; 1st C.S., ch. 91, 54, at 223. And
finally, he was required, at section 5, to prepare a
report showing the status of all public funds in the state
and to +ecommend to the Legislature such changes as he
deems necessary to provide uniform, adequate and efficient
systems of records and accounting in each department."
Acts 1929, 41st Leg., 1st C.S., ch. 91, 55, at 224.
The 1929 act was repealed in 1943. The position was
renamed "State Auditor," and appointment power was vested
in the newly-created Legislative Audit Committee, a joint
interim committee of the legislature. Acts 1943, 48th
Leg., ch.293, at 429 [codified at V.T.C.S. arts. 4413a-13
through 4413a-241. Section 7 of 1943 act continued to
repose in the Auditor the authority to audit all accounts,
books, and financial records of every agency of the state,
but the act for the first time purported to confer on the
Auditor the authority, not just to report to the legisla-
ture recommended changes, but also to direct the adminis-
tration or execution of the laws by executive branch
agencies themselves insofar as he was authorized: "TO
require such changes in the accounting system or systems
and record or records of any office, department, board,
bureau, institution, commission or state agency, that 'in
his opinion will augment or provide a uniform, adequate,
and efficient system of records and accounting." Acts
1943, 48th Leg., ch. 293, §7(3), at 431. Section 8 of the
1943 act also required the Auditor to prepare, again, a
report for the head of every agency on, inter alia, the
P
efficiency of subordinate employees, the amount of
duplication between work done by the examined agency and
other agencies, and "any suggested changes looking toward
economy and reduction of number of clerical and other
employees, and the elimination of duplication and
inefficiency." Section 8 also set forth the following:
p. 4227
Honorable Bob Bullock - Page 4 (JR-872)
Reports shall also contain specific
recommendations to the Legislature for the
amendment of existing laws or the passage of
new laws designed to improve the functioning
of various departments, boards, bureaus,
institutions or agencies of State Government
to the end that more efficient service may
be rendered and the cost of government
reduced.
All recommendations submitted by the
State Auditor shall be confined to those
matters properly coming within his jurisdic-
tion, which is to see that the laws passed
by the Legislature dealing with the expendi-
ture of public moneys are in all respects
carefully observed, and that the attention
of the Legislature is directed to all cases
of violation of the law and to those
instances where there is need for change of
existing laws or the passage of new laws to
secure the efficient 'spending of public
funds. The State Auditor shall not include
in his recommendations to the Legislature
any recommendations as to the sources from
which taxes shall be raised to meet the
governmental expense.
Acts 1943, 48th Leg., ch. 293, 58, at 432. And finally,
section 10 of the act authorized the Legislative Audit
Committee to conduct hearings with the head of any agency
where the Auditor has found "evidence of improper prac-
tices of financial administration or of any general
incompetency of personnel, inadequacy of financial
records." Acts 1943, 48th Leg., ch. 293, 510, at 433.
The committee was required to report to the legislature
any refusal of the agency officials to remedy "Such
incompetency or the, installation of proper fiscal
records." Id. Except for a 1977 amendment giving the
committee authority to subpoena information that it seeks,
the act remained unchanged until 1985. At that time, the
articles governing the Legislative Audit Committee and the
State Auditor were recodified in a nonsubstantive revision
and placed in Chapter 3 of the newly-enacted Government
Code. House Bill No. 699 and House Bill No. 2181, the two
bills about which you inquire, were adopted in 1987 by the
70th session of the Legislature.
p. 4228
Honorable Bob Bullock - Page 5 (JM-872)
Prior to the enactment of H.B. 699, section
321.013(a) of the Government Code provided, inter alia,
that the State Auditor shall "perform an audit of all
governmental accounts, books, and other financial records
of any state officer or department." The chapter did not
define "audit," but section 321.014(a) provided that the
Vtate Auditor shall conduct each audit as directed by the
committee and as prescribed by this chapter." With the
passage of H.B. 699, section 321.013(f) of the Government
Code now confers authority on the State Auditor to conduct
various types of audits, specifically "financial ~audits,
compliance audits, economy and efficiency audits,
effectiveness audits, special audits, and investigations
as defined by this chapter."
Sections 321.0133 and 321.0134 of the Government Code
define "economy and efficiency audit" and "effectiveness
audit" respectively. Section 321.0133 of the Government
Code provides:
An economy and efficiency audit is an audit
to determine:
(1) whether the audited entity is
managing or utilizing its resources,
including state funds, personnel, property,
equipment, and space, in an economical and
efficient manner:
(2) causes of inefficiencies or uneconom-
ical practices, including inadequacies in
management information systems, internal and
administrative procedures, organizational
structure, use of resources, allocation of
personnel, purchasing, policies, and eguip-
ment; and
(3) whether financial, program, and stat-
istical reports of the audited entity
contain useful data and are fairly
presented.
Section 321.0134 of the Government Code provides:
(a) An effectiveness audit is an audit to
determine, according to established
designated prcgram objectives, responsibilyf
ties or duties, statutes and regulations,
program performance criteria, or program
evaluation standards:
p. 4229
Honorable Bob Bullock - Page 6 W-872)
(1) whether the objectives and
intended benefits are being achieved
efficiently and effectively: and
(2) whether the program duplicates,
overlaps, or conflicts with another state
program.
(b) An effectiveness audit may be sched-
uled only when the audited entity is not
scheduled for review under the Texas Sunset
Act (Chapter 325).
Section 321.016 of the Government Code requires, inter
u, that the State Auditor report to the Governor, the
Legislative Audit Committee, the administrative head and
the chairman of the governing body of the affected agency,
any evidence of improper practices of financial adminis-
tration or "ineffective program performance"; the Legisla-
tive Audit Committee is required then to report to the
legislature any refusal by the administrative head or the
governing body of the agency to make changes recommended
by the committee.
You first ask whether section 321.016 of the Govern-
ment Code, as amended by H.B. 699, is unconstitutional to
the extent that it purports to give the Legislative Audit
Committee the authority to order changes in the way in
which legislation is implemented or administered by an
executive agency. Section 321.016, Government Code, now
provides the following:
(a) If in the course of an audit the
State Auditor finds evidence of improper
practices of financial administration,
inadequate fiscal records, uneconomical use
of resources, or ineffective program
performance, the State Auditor, after
consulting with the head of the agency,
shall immediately report the evidence to the
governor, the committee, and the administra-
tive head and the chairman of the governing
body of the affected department.
(b) If in the course of an audit the
State Auditor finds evidence of an illegal
transaction, the State Auditor, after
consulting with the head of the agency,
p. 4230
Honorable Bob Bullock - Page 7 (JB-872)
shall immediately report the transaction to
the governor, the committee, and the appro-
priate legal authority.
(c) Immediately after the committee
receives a report from the State Auditor
alleging improper practices of financial
administration, uneconomical use of
resources, or ineffective program perform-
ance, the committee shall review the report '
and shall consult with and may hold hearings
with the administrative head and the
chairman of the governing body of the
affected department regarding the report.
(d) If the administrative head or the
governing body of the affected department
refuses to make the changes recommended by
the committee at the hearing or provide any
additional information or reports requested,
the committee shall report the refusal to
the legislature.
The various statutes enacted through the years
conferring authority upon the Legislative Audit Committee
and its effective agent, the State Auditor, reveal a trend
toward the conferral of ever-expanding authority on both.
The 1929 act conferred upon the State Auditor and
Efficiency Expert the authority to examine the fiscal
records of every state agency and to make recommendations
to the legislature regarding the elimination of
duplication and inefficiency. The 1943 act attempted to
expand the authority of the newly-named State Auditor by
conferring upon him the power, not only to report to the
legislature recommended changes, but to direct the admin-
istration or execution of the laws by requiring each
agency to install whatever method of accounting and record
keeping that he recommended. After conducting hearings
with the heads of those agencies in which the State
Auditor found evidence of improper practices of financial
administration, inadequate financial records, or "general
incompetency of personnel," the newly-created Legislative
Audit Committee was required to report to the legislature
as a whole any refusal of agency officials to remedy those
identified problems. And with the 1987 amendments to the
recently-codified Government Code, the State Auditor
appears to be empowered to "audit" not just the efficiency
and cost effectiveness of an agency's performance, but
also the substantive performance of the tasks and
responsibilities imposed by law on an executive agency,
p, 4231
Honorable Bob Bullock - Page 8 (JM-872)
. to determine whether there is "ineffective program
;eZormance." It appears, for example, that inquiry into
whether the College Coordinating Board, for instance, is
in fact carrying out its statutory responsibilities rests
now with the Legislative Audit Committee rather than with
the Committee on Higher Education in the House of
Representatives and with the Committee on Education in the
Senate.
Article II, section 1, of the Texas Constitution
provides for the separation of powers between the
executive, the judicial, and the legislative branches of
government. It states:
The powers of the Government of the State of
Texas shall be divided into three distinct
departments, each of which shall be confided
to a separate body of magistracy, to wit:
Those which are Legislative to one, those
'which are Executive to another, and those
which are Judicial to another: and no
person, or collection of persons, being of
one of these departments, shall exercise any
power properly attached to either of the
others, except in the instances herein
expressly permitted.
This office has consistently held that any attempt by
the legislature to supervise the implementation of duly
enacted statutes through the means of a legislative
committee or through some means other than the normal
legislative processes (set forth in sections 28 through 40
of article III of the Texas Constitution) violates article
II, section 1. Attorney General Opinions MW-460 (1982) r
V-1305 (1951); V-1254 (1951); and O-4609 (1942). This
rule is the rule in virtually every other state that has
had cause to address this issue. See, e.9. Legislative
Research Comm'n v. Brown, 664 S.W.2d 907 (Ky: 1984); State
ex rel. SteDhan v. Kansas House of ReDresentatives, 687
P.2d 622 (Kan. 1984); General Assemblv of the State of New
Jersev v. Bvrne, 448 A.2d 438 (N.J. 1982); State ex rel.
Barker v. Manchin, 279 S.E.2d 622 (W. Va. 1981); State of
Alaska v. A.L.I.V.E. Voluntary 606 P.2d 769 (Alaska
1980); see also Bonfield, S&e Administrative Rule
Makinq, 58.3.2(c).
In Attorney General Opinion O-4609 (1942), this
office addressed whether a bill creating a Joint
Legislative Advisory Committee and conferring specific
powers thereon was constitutional. The opinion construed
p. 4232
Honorable Bob Bullock - Page 9 (``-872)
a rural aid appropriations bill, Acts 1941, 47th Leg., ch.
549, at 880, that created a joint legislative advisory
committee composed of five senate members and five house
members. The committee was given the authority to approve
numerous transactions, including the receipt of tuition
payments and transportation aid by school districts. This
office held that only so much of the act that created a
joint legislative advisory committee to study school laws
as an aid to their recodification was constitutional; the
provisions reposing in the committee the authority to
administer the law were unconstitutional.
It is the function of the legislative branch
of the government to make the laws: it is
the function of the executive branch of the
government to administer and execute those
laws. In the statute under consideration,
the Legislature of the State of Texas has
undertaken not only to declare what the law
shall be, which is clearly its prerogative,
but has also undertaken to clothe a portion
of the membership of the Legislature, the
Joint Legislative Advisory Committee, with
the authority to execute and administer the
law passed by the Legislature. Under
Article 2. Section 1. of the Constitution of
the State of Texas. the Legislature is
powerless to clothe itself, or a nortion of
its members. with executive authoritv.
(Emphasis added.)
Attorney General Opinion O-4609 (1942) at 8.
In Attorney General Opinions V-1305 and V-1254
(19511, this office declared unconstitutional
appropriations act rider that attempted to confer on tii
Legislative Budget Board the authority to require of
various executive branch administrative agencies further
itemization of appropriations or specific approval of the
expenditure of appropriated funds by the board.
The phrase 'any power properly attached
to either of the others' [set forth in
Article II, section l] prompts inquiry as to
what powers belong to each branch. 'Legis-
lative' means 'making, or having the power
to make, a law or laws.' Webster's New
International Dictionary (2d Ed. 1938).
This includes making and itemizing approp-
riations. 'The power to itemize
p. 4233
Honorable Bob Bullock - Page 10 (JR-872)
appropriations is a legislative power which
it may exercise if it sees fit as lona
the matter is in its hands. . . . Tit: ?
legislation is complete when the
;zEp;iation is made.' -Peoole V. Tremaine
. . 817 (N.Y. Ct. ADD. 1929). Th;
monev once ansronriated. th;-Legislature is
no longer authorized to concern itself with
the further segregation and disbursement of
the funds. the constitutional inhibition
beina not onlv against actual usurnation of
the function, but also against one
denartment's setting itself UD in a
sunervisorv caoacitv over the actions of
another. lcitation omittedl. Parenthetic-
allv. it mav be noted here that if the
gnnroval of nrooosed exnenditures be con-
sidered a legislative function. still such
function could not be delegated bv the body
a a 1 few of its members.
[%tati%"o~it``d.~
The legislative function'being to make
laws, the executive function is to carry
them out. Webster's New International
Dictionary (2d Ed. 1938), in its definition
of 'executive,' uses the phrases 'or
carrying into effect' . . . 'or secures
their due performance.' More snecificallv,
the fiscal administration of the affairs of
the ao ernment has been held to be an
executi:e dutv lcitation omitted.1 The
above riders 'thus attern& to vest
executive Dower in a ioint committee of tFZ
legislative branch. (Emphasis added.)
Attorney General Opinion V-1254 (1951) at 15.
And finally, in Attorney General Opinion MW-460
(1982), this office held unconstitutional legislation that
purported to confer authority on the standing committees
of both houses of the legislature effectively to veto or
repeal administrative rules adopted by executive agencies
pursuant to the Administrative Procedure and Texas
Register Act, article 6252-13a, V.T.C.S. The opinion held
that the discretionary rulemaking authority delegated to
an administrative agency is an executive function; it is
therefore impermissible under article II, section 1 of the
Texas Constitution, for the legislature or one of its
committees to usurp the function. See Walker v. Baker, -7
p. 4234
Honorable Bob Bullock - Page 11 (JM-872)
.
196 S.W.2d 324 (Tex. 1946); Kx oarte Younablood;251 S.W.
509 (Tex. Crim. App. 1923).
In passing upon the constitutionality of any statute,
we begin with a presumption of validity. Smith v. Davis,
426 S.W.2d 827 (Tex. 1968); Texas National Guard Armory
Board v. McGraw 126 S.W.2d 627 (Tex. 1939). We are
required, moreov&, to construe the code .provisions at
issue in a way that comports with the constitution, if any
such reasonable c'onstruction is possible. McKinnev
Blankenshin, 282 S.W.2d 691 (Tex. 1955); Thomas v. Groeby;
212 S.W.2d 625 (Tex. 1948). See also Gov't Code, 5311.021
(Code Construction Act): Local Gov't Code, 51.002
(application of Code Construction Act to Local Government
Code).
If we were to construe section 321.016 of the
Government Code in the fashion that you suggest, i.e., as
conferring authority on the Legislative Audit Committee to
order changes in the way that executive agencies implement
or administer duly enacted statutes, we would be
constrained to hold the section unconstitutional.
However, we do not so construe that provision. Subsection
(c) of section 321.016 merely confers on the committee the
authority to make recommendations to the various executive
agencies, recommendations that each agency may ignore.
However, subsection (d) provides that, if any agency
refuses to accept any such recommendation, the committee
is required to inform the legislature as a whole of that
fact. Subsection (d) permits an ill-disguised attempt by
the committee to direct the methods by which investigated
administrative agencies execute the laws. While it is true
that the committee itself technically is not conferred the
authority to impose sanctions or to enforce compliance by
those administrative agencies that refuse to comply with
committee recommendations, the absence of such conferral
of authority does not resolve the article II, section 1,
issue. Subsection (d) clearly acts in a punitive, and
perhaps in 6 coercive, fashion that is tantamount to a
legislative usurpation of executive power, in violation of
article II, section 1, of the Texas Constitution. We do
not question the authority of the legislature or of a
committee of the legislature to gather information and to
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investigate those matters about which it properly could
enact legislation, a subject that we will address more
fully in answer to your fourth and fifth questions. We
question only the propriety of making a committee's report
to the legislature as a whole mandatory upon an adminis-
trative agency's refusal to comply with the committee's
recommendations.
p. 4235
Honorable Bob Bullock - Page 12 (JB-872)
As a matter of law, the committee does not have the
authority to order any executive agency to implement or
administer any law in any particular manner, any more than
it has authority to direct officers in the judicial branch
in the construction of the laws, which the constitution
reposes in the judicial branch. The legislature's
authority to direct the administration of laws whose
execution is reposed by statute in.so-called "legislative
agencies," see. e.g., Gov't Code, §§326.001-326.003, is
greater, 'of course. Accordingly, we conclude that chapter
321 of the Government Code, which creates the Legislative
Audit Committee and the office of State Auditor and
confers powers and duties thereon, does not authorize the
Legislative Audit Committee to order an executive agency
to change the way in which it implements or administers
any law; however, subsection (d) of section 321.016 does
authorize an impermissible intrusion by the legislative
branch into areas of administration reposed by the Texas
Constitution in the executive branch. Insofar as that
subsection requires the committee to report to the legis-
lature as a whole in the event that an administrative
agency fails to adopt its recommendations, subsection (d)
is unconstitutional.
You next ask whether the State Auditor, whom you
characterize as, in effect, an employee of the Legisla-
ture, may properly exercise authority to supervise members
of the executive branch in their implementation of
statutes or whether his proper role is investigatory only.
As we noted earlier, the position of State Auditor was
created in 1943 to replace an executive officer, the
"State Auditor and Efficiency Expert," appointed by the
governor. Acts 1929, 41st Leg., 1st C.S., ch. 91, at 222.
The 1943 act repealed the 1929 act, created the Legisla-
tive Audit Committee, renamed the position "State
Auditor," and conferred authority on the committee to
appoint him. There is no question that the State Auditor
is an appointee and an agent of the legislature. &g
Gov't Code, §§326.001-326.003 (authorizing co-operation
between houses of the legislature and leaislative
agencies) (formerly codified as article 5429g, V.T.C.S.);
see also Attorney General Opinions MB-192 (1980): H-1063
(1977); V-504 (1948). Accordingly, we conclude that the
State Auditor is a subordinate of the legislative branch.
For the reasons set forth in answer to your first
question, if we were to construe chapter 321 as conferring
on the State Auditor the authority to order any changes in
the way in which executive agencies administer the laws,
we would be constrained to declare any such provisions
p. 4236
Honorable Bob Bullock - Page 13 04-872)
unconstitutional as a violation of article II, section 1,
of the Texas Constitution. And, again, for the reasons
set forth in answer to your first question, we do not
construe any provision of chapter 321 of the Government
Code as conferring authority on the State Auditor to order
executive agencies to change the way in which statutes are
implemented or administered. If the State Auditor were
part of the executive branch whose activities were
directed, as they were prior to the 1943 enactment, by the
Governor rather than by the Legislative Audit Committee,
his authority possibly could be broader. But such is not
the case.
Section 321.013 of the Government Code sets forth the
powers and duties of the State Auditor and provides:
(a) The State Auditor shall conduct
audits of all departments, including insti-
tutions of higher education, as specified in
the audit plan. At the direction of the
committee, the State Auditor shall conduct
.an audit or investigation of any entity
receiving funds from the state.
(b) The State Auditor shall conduct the
audits in accordance with generally accepted
auditing standards as prescribed by the
American Institute of Certified Public
Accountants, the Governmental Accounting
Standards Board, the United States General
Accounting Office, or other professionally
recognized entities that prescribe auditing
standards.
(c) The State Auditor shall determine the
audit plan for the state for each fiscal
year. In devising the plan, the State
Auditor shall consider recommendations
concerning coordination of agency functions
made by the committee composed of the
Legislative Budget Board, Sunset Advisory
Commission, and State Auditor's Office. The
plan shall provide for auditing of federal
programs at least once in each fiscal bien-
nium and shall ensure that audit reguire-
ments of all bond covenants and other credit
or financial agreements are satisfied. The
committee shall review and approve the plan.
p. 4237
Honorable Bob Bullock - Page 14 (JK-872)
(d) At any time during an audit or
investigation, the State Auditor may require
the assistance of the administrative head,
official, auditor, accountant, or other
employees of the entity being audited or
investigated.
(e) The State Auditor is entitled to
,access to all of the books, accounts,
confidential or unconfidential reports,
vouchers, or other records of information in
any department or entity subject to audit,
including access to all electronic data.
However, the State Auditor has access to
information and data the release of which is
restricted under federal law only with the
approval of the appropriate federal adminis-
trative agency, and the State Auditor shall
have access to copyrighted or restricted
information obtained by the Office of the
Comptroller of Public Accounts under sub-
scription agreements and utilized in the
preparation of economic estimates only for
audit purposes.
(f) The State Auditor may conduct finan-
cial audits, compliance audits, economy and
efficiency audits, effectiveness audits,
special audits, and investigations as
defined by this chapter and specified in the
audit plan.
(g) To the extent that the performance of
the powers and duties of the State Auditor
under law is not impeded or otherwise
hindered, the State Auditor shall make
reasonable efforts to coordinate requests
for employee assistance under Subsection (d)
or requests for access to books, accounts,
vouchers, records, or data under Subsection
(e) so asp not to hinder the daily operations
of the audited entity.
(h) The State Auditor may not conduct
audits of private entities concerning
collection or remittance of taxes or fees to
the state if the entity is subject to audit
by another state agency for the taxes or
fees.
p. 4238
Honorable Bob Bullock - Page 15 (JM-872)
.
(i) If the State Auditor decides a change
in an accounting system is necessary, the
State Auditor shall consider the present
system of books, records, accounts, and
reports to ensure that the transition will
be gradual and that the past and present
records will be coordinated into the new
system.
Sections 321.0131 through 321.0136 define the various
audits and investigations that the State Auditor may
conduct. Nothing in these sections or in section 321.016,
purports to confer any authority upon the State Auditor to
direct the activities of state agencies.
In your third question you ask whether sections
51.005 and 61.065 of the Education Code, as amended by
H.B. 2181, are unconstitutional insofar as they purport to
allow the State Auditor, an agent of the legislative
branch, to prescribe administrative rules for state
institutions of higher education. Prior to the 1987
amendments, the authority to prescribe such administrative
rules was reposed solely in the College Coordinating
Board. In a letter accompanying a brief submitted to this
office by the State Auditor, it is urged that, if it is
constitutional for the legislature to delegate to a member
of the executive branch the authority properly to promul-
gate rules that have the force and effect of law, it is
certainly constitutional for the legislature to delegate
such authority to a member of the legislative branch. We
disagree; we conclude that the amended sections of the
Education Code are unconstitutional insofar as they
purport to confer joint rulemaking authority on the State
Auditor and the College Coordinating Board.
Section 51.005 of the EducationCode provides:
(a) True and full accounts shall be kept
by the governing board and by the employees
of the institution of all funds collected
from all sources and of all sums paid out
and the persons to whom and the purposes for
which the sums are paid. The governing
board shall annually, between September 1
and January 1, print a complete report of
all the sums collected, all expenditures,
and all sums remaining on hand. The report
P. 4239
Honorable Bob Bullock - Page 16 (JM-872)
.
shall show the true condition of all funds
as of the August 31 preceding as well as the
collections and expenditures for the
preceding year.
(b) ReDOrtS under this section must be in
a form aDVrOVed iointlv bv the coordinatinq
board and the state auditor. Tbe accoun&&lg
and classification vrocedures of each insti-
tution must be consistent with uniform
procedure vrescribed f r that DurDose bv
the coor%natinci boar: and the state
auditor. The requirements imvosed bv the
coordinating board and state auditor must be
designed to reduce DaDerwork and duvlicative
reDorts .
(c) The governing board shall furnish one
copy of the report each to the governor,
comptroller of public accounts, state
auditor, Texas Higher Education Coordinating
Board, Legislative Budget Board, House
Appropriations Committee, Senate Finance
Committee, and Legislative Reference Libra- 1
W. The governing board shall retain five
copies of the report for distribution to
legislators or other state officials on
request. (Emphasis added.)
Section 61.065 of the Education Code provides:
(a) The state auditor and the board
iointlv shall DreSCribe and DeriOdiCallV
UDdate a uniform 'svstem of financial
accounting and reDortina for the institu-
tions of higher education. includinq
definitions of the elements of cost on the
basis of which aDDroDriations shall be made
and financial records shall be maintained.
In order that the uniform system of
financial accounting and reporting shall
provide for maximum consistency with the
national reporting system for higher ?
education, the uniform system shall
incorporate insofar as possible the
provisions of the financial accounting and
reporting manual published by the National
Association of College and University
p. 4240
Honorable Bob Bullock - Page 17 (JM-872)
Business Officers. The accounts of the
institutions shall be maintained and audited
in accordance with the approved reporting
system.
(b) The coordinating board shall annually
evaluate the informational requirements of
the state for purposes of simplifying insti-
tutional reports of every kind and shall
consult with the state auditor in relation
to appropriate changes in the uniform system
of financial accounting and reporting.
(Emphasis added.)
In legal theory, the legislative power vested in the
legislature by article III, section 1, of the constitution
must be exercised by it alone. Texas National Guard
Armorv Board v. McGraw, sunra; Brown v. Humble Oil 8
Refining Co., 83 S.W.2d 935 (Tex. 1935). The principle of
non-delegation, however, has certain important
qualifications. See aenerallv, Annot., Permissible limits
to delegation of legislative Dower, 79 L. Ed. 414 (1935).
Many powers properly have been delegated by the legisla-
ture to administrative agencies. See, e.9 q
Authoritv of Dallas v. Hiaainbotham, 143 s.i: 79"yEi.
1940); Brazos River Conservation & Reclamation Dist. v.
McGraw, 91 S.W.2d 665 (Tex. 1936); Trimmier v. Carlton,
296 S.W.Zd 1070 (Tex. 1927). Among them has been the
power to make rules having the force and effect of law.
S , e.a., Housing Authoritv of Dallas v. Hiaainbotham,
$&a .; O'Brien v. Amerman, 247 S.W. 270 (Tex. 1922):
Soears v. Citv of San Antonio, 223 S.W. 166 (Tex. 1920).
Valid rules promulgated by an administrative agency acting
within its statutory authority have the force and effect
of legislation. Lewis v. Jacksonville Building and Loan
Association 540 S.W.2d 307 (Tex. 1976). A rule
oromulaated'bv an administrative aaencv acting within its
delegated authority should be considered under the same
.principles as if it were the act of the legislature.
Texas Licuor Control Board v. Attic Club, Inc., 457 S.W.
41 (Tex. 1970). Nevertheless, when such rulemaking power
is vested in an agency of the state, it is regarded as an
incident of the executive power to administer laws enacted
by the legislature, and not as a power to enact laws. It
is held that an act of the legislature that is complete
and comprehensive in itself and which confers upon an
agency authority only to establish rules, regulations and
minimum standards to reasonably carry out the expressed
purposes of the leaislature's act, does not make a
constitutionally forbidden delegation of legislative
p. 4241
Honorable Bob Bullock - Page 18 (JM-872)
power. Oxford v. Hill 558 S.W.2d 557 (Tex. Civ. App. -
Austin 1977, writ ref:d). It confers only the power to
efficiently administer the complete law already
established by the legislature. See E
561 S.W.2d 503 (Tex. Crim. App. 1978).
Comoanv v. State 153 S.W.2d 681 (Tex. 1941) (delegated
power to fix rat& is legislative power).
The power to control or correct decisions committed
to administrators by law is an executive,function. Walker
v. Baker, m. The legislature, of course, may in the
first instance severely restrict the discretion of
executive officers or administrators to make rules by so
thoroughly detailing legislation before it leaves its
ambit that little or no room is left for administrative
interpretation. &g Fire DsDartment f Citv of Fort Worth
v. Citv of F r-tWorth 217 S.W.2d 664O(Tex. 1949); Letter
Advisory No.O2 (1973): And, by the proper exercise of its
law-making powers, the legislature may supersede or repeal
any agency rule or decision that has acquired the force
and effect of law. But when a statute commits. to an
administrative agency's control the power to execute that
law and promulgate rules in order to better administer the
legislative policy embodied therein, neither the legisla-
ture nor any of its committees may direct that agency
regarding the manner in which the executive discretion is
thus reposed. Tex. Const. art. II, 51.
If a discretionary Nlemaking function delegated to
an administrative agency is an executive function -- as we
think it is -- it is impermissible for the legislature (or
one of its committees) to usurp that function. Tex.
Const. art. II, 51, Walker v. Baker, m; Ex oarte
Younablood, suora; Attorney General opinions V-1254
(1951); O-4609 (1942). See State ex r 1 Judae v.
Legislative Finance Committee, et al., 5:3- P.2d 1317
(Mont. 1975). Se also Anderson v. Lamm, 579 P.2d 620
(Colo. 1978): Ine r ni i of the Justices to the
Governor, 341 N.E.2de25z (:a::. 1976). See also, Railroad
Commission of Texas v. Shell Oil ComDanv, 161 S.W.Zd 1022
(Tex. 1942): penison v. State, 61 S.W.2d 1017 (Tex. Civ.
APP. - Austin), writ ref'd ner curiam, 61 S.W.2d 1022
(Tex. 1933).
The amendments also violate article III, section 1,
of the Texas Constitution, even if the powers conferred
could be said to be purely legislative in character. It
was held in Parks v. West, 111 S.W. 726 (Tex. 1908), and
reiterated in Walker v. Baker, m, that where the
constitution gives a power and prescribes the means by
p. 4242
Honorable Bob Bullock - Page 19 (JM-872)
which or the manner in which it is to be exercised, such
means or manner is exclusive of all others. Article III,
section 1, of the constitution vests the legislative power
of the state "in a Senate and House of Representatives,
which together shall be styled 'The Legislature of the
State of Texas."' Sections 29 through 40 of that article
detail at great length the manner in which the legislature.
must exercise its right to legislate. Because the means
by which the legislature is to accomplish the enactment of
laws is expressly provided by the constitution, any
authority for the legislature to exercise that right in a
different mode is excluded. m Walker v. Baker, suvra:
American Indemnitv Comnanv v. Citv of Austin, 246 S.W.
1019 (Tex. Crim. App. 1922).
Accordingly, we conclude that the two amended
Education Code provisions are unconstitutional because
they attempt to confer upon members of the legislative
branch of government an executive power to efficiently
administer laws enacted by the legislature.
The restrictions in article II, section 1, apply, to
P a "collection of persons" of the legislative department.
It was held in Ex carte Younablood, 251. S.W. 509 (Tex.
Crim. App. 1923), that when a power conferred by the
constitution upon the~legislature or either branch thereof
is in turn conferred by the constitutionally designated
legislative body upon a committee composed of members of
the house and senate, the committee is a "collection of
persons" within the proscription of the foregoing consti-
tutional provision -- and one to which non-legislative
powers cannot be delegated. See also Walker v. Baker, 196
S.W.Zd 324 (Tex. 1946); Attorney General Opinions V-1254
(1951); o-4609 (1942). See also Anderson v. Lamm, 579
P.2d 620 (Colo. 1978); In re Ovinion of the Justices to
the Governor, 341 N.E.2d 254 (Mass. 1976): Bramlette v.
Stringer 195 S.E. 257 (So. Car. 1938); Peoole v.
Tremaine: 168 N.E. 817 (N.Y., 1929).
It has been suggested that Texas has adopted the more
modern view of the doctrine of separation of powers, which
permits cooperation between branches of government rather
than enforces a rigid separation between them. It is
contended that the older view, perhaps best exemplified by
Kilbourn v. Thomnson, 103 U.S. 168 (1880), has been dis-
carded in favor of a more flexible construction of the
constitutional provision. In Kilbourn v. Thomnson, w,
the United States Supreme Court set forth a classic state-
ment of the older construction:
p. 4243
Honorable Bob Bullock - Page 20 (JW-872)
It is believed to be one of the chief merits
of the American system of written constitu-
tional law, that all powers intrusted to
government, whether state or national, are
divided into the three grand departments of
government, the executive, the legislative,
and the judicial. That the functions
appropriate to each of these branches of
government shall be vested in a separate
body of public servants, anp that the
perfection of the svstem recuires that the
lines which sevarate and divide thes
deDartmentS be broadlv and clearlv defined:!
Jt is also essential to the successful
working of this svstem that the nersons
intrusted with Dower in anv one of these
branches shall not be oermitted to encroach
unon the oowers confided to the others. but
that each shall bv the law of its 'creation
be limited to the exercise of the vowers
xrouriate to its own deDartment and to no
Ethel;. (Emphasis added).
Id. at 190-191. A statement of.the more modern view was
well expressed in J. W. Hamnton. Jr. & co. v. United
States, 276 U.S. 394 (1928):
Our Federal Constitution and State
Constitutions of this country divide the
governmental power into three branches
. . . . [T]he rule is . . . in carrying out
that constitutional division into three
branches it is a breach of the fundamental
law if Congress gives up its legislative
power and transfers it to the President or
to the Judicial branch, or if by law it
attempts to invest itself or its members
with either executive or judicial power.
This is not to say that the'three branches
are not coordinate Darts of one government
and that each in the field of its duties may
not invoke the action of the other two
branches insofar as the action invoked shall
not be an assumvtion of the Constitutional
field of action of another branch. In
determining what it mav do in seekinq
assistance from another branch. the extent
p. 4244
Honorable Bob Bullock - Page 21 (JW-872)
and character of that assistance must be
fixed according to common sense and the
inherent necessities of the aovernmental
coordination. (Emphasis added.)
a. at 406: see also, y nastown Sheet 8 Tube Co. v.
Sawer, 343 U.S. 579 at 6:: (1952). But see, Singer, 2a
Sutherland on Statuto rv Construction, 53.07. The rule as
stated in Sutherland seems to be:
This interpretation of the doctrine permits
the exercise by one department of some
powers of the other departments when it is
essential to the discharge of a primary
function, when it is not an assumption of
the whole power of another department, and
when the exercise of the other power does
not jeopardize individual liberty.
Id. at 83.06 (and cases cited therein).
The'argument that. Texas adopts the more modern view
P
rests primarily upon language found in a case that
received no review by the Supreme Court, Coates v.
Windham, 613 S.W.Zd 572 (Tex. Civ. App. - Austin 1981, no
writ), which upheld an appropriations act rider that
conferred upon certain, specified public officers the
limited and negative power of declining approval of any
particular prison site proposed by the Department of
Corrections. The relevant passage provides:
We believe that it is well settled that this
constitutional prohibition [providing for
separation of powers] states a princivle of
government and not a rigid classification as
in a table of organization. This provision
must be interpreted along with other
constitutional provisions, and when this is
done it is clear that the Constitution does
three things: (1) it provides for three
polar functions of government; (2) it
delegates certain powers to each of the
three departments in a distribution of all
governmental powers; and (3) it blends
P
legislative, executive, and judicial powers
in a great many cases. [Footnote omitted.]
The proper interpretation of Article II,
section 1 is therefore dictated by its
context. The proper interpretation is that
this provision prohibits a transfer of a
p. 4245
Honorable Bob Bullock - Page 22 (JM-872)
whole mass of powers from one department to
another and it prohibits a person of one
branch from exercising a power historically --..
or inherently belonging to another depart-
ment. It may not be interpreted in a way
that prevents cooperation or coordination
between two or more branches of government,
hindering altogether effective governmental
action. It was designed, as were other
checks and balances, to prevent excesses.
(Emphasis in original).
613 S.W.2d 572 at 576.
For purposes of this discussion, we are not prepared
to accept the proposition that Texas adopts the more
modern, flexible construction of the separation of powers
doctrine, absent a definite ruling of the Texas Supreme
Court. We note that it is only under that construction
that article II, section 1, would permit the legislature,
or more specifically a joint interim committee thereof, to
'appoint the State Auditor, since the appointment power,
except for specific constitutional provisions reposing
such authority in others, is historically one that inheres
in the office of Governor. See, Walker v. Baker, w.
Because you do not ask about the constitutionality of the
statute pursuant to which the State Auditor is appointed,
we need not resolve that issue. But even this more
flexible construction will not permit the sort of
intrusion that the Education Code amendments contemplate.
In State Board of Insurance v. Betts, 308 S.W.Zd 846
(Tex. 1958), the court held that, in an instance in which
the attorney for a statutory receiver for an insurance
company resigned and the board of insurance commissioners
did not designate a successor, the district judge had
discretionary power to appoint an attorney for the
receiver, since he had judicial control or supervision of
the receivership case. The statute then in force
conferred appointment authority upon the board. The court
seemed to accept the modern construction of the separation
of powers principle when it rejected a challenge to the
judge's action under article II, section 1. But the court
stated, at 851-852:
-I
However the controlling factor in settling
the constitutional point presented is the
presence or absence of interference with the
effective judicial control occasioned by the
executive power to select a liquidator.
. . . It is onlv when the functioning of the
p. 4246
Honorable Bob Bullock - Page 23 (JM-872)
judicial orocess in a field constitutionally
committed to the control of the courts is
interfered with bv the executive or
legislative branches th t constitutional
problem arises. (Emphas?s zdded.)
Analogously, we conclude that the Education Code
amendments about which you inquire permit the legislature,
or more specifically an effective agent of a committee of
the legislature, to interfere with the proper functioning
of an executive branch agency in a field constitutionally
committed to its control, i.e. the proper execution or
administration of the law and the responsibilities duly
imposed upon it by statute. Our construction of article
II, section 1, and article III, section 1, suggests that
the State Auditor may. not constitutionally prescribe
accounting and record keeping procedures for all state
agencies. There is no question that the legislature is
authorized to prescribe the accounting and record keeping
procedures to be followed by state agencies. It is
doubtful, however, whether the State Auditor and the
Legislative Audit Committee may prescribe such procedures.
-
Although such authority has been conferred by statute
sinc.e 1943, general acquiescence in a custom which may not
have resulted in a harmful violation of the constitution
does not nreclude a contest when substantial rights are
insisted upon. Citv of Los Anaeles v. Los Anaeies City
Water Co., 177 U.S. 558 (1919). If it be urged that the
result that we reach here is unrealistic, impractical, and
inefficient, we note the words of the United States
Supreme Court in the recent case of Immiciration and
Naturalization Service v. Chadha, 462 U.S. 919 at 944
11983) fwhich held that the so-called "leaislative veto"
&an unconstitutional violation of the implied separation
of powers principle of the U.S. Constitution):
. . . the fact that a given law or procedure
is efficient, convenient, and useful in fac-
'ilitating functions of government, standing
alone, will not save it if it is contrary to
the Constitution. Convenience and efficien-
cy are not the nrimarv obiectives -- or the
hallmarks -- of democratic government. . . .
- We conclude that the Education Code provisions about
which you inquire interfere impermissibly with the proper
administration of the laws reposed by article II, section
1, in the executive branch. Accordingly, we conclude that
it is constitutionally impermissible for the legislature
to delegate to the State Auditor and the College
p. 4247
Honorable Bob Bullock - Page 24 (JM-872)
Coordinating Board the joint authority to promulgate
administrative rules.
You next ask:
Whether the State Auditor's authority as
legislative staff is similarly limited to
investigating matters that could lead to
legislation?
Assuming a 'yes' answer to my fourth gues-
tion, my fifth question is:
Since the Comptroller and nd the
Legislature has .been given constitutional
responsibility for the revenue estimating/
budget certification function, Tex. Const.
Art. III, Sec. 49a, and it is not clear what
legislation could constitutionally be
enacted controlling the manner in which the
revenue estimate for budget certification is
determined, whether the State Auditor has
authority to evaluate or inquire into how
the revenue estimating/budget certification
function is carried out.
Courts in this state long ago upheld the right of the
legislature, to appoint committees for the purposes of
conducting investigations and gathering information
regarding the possible enactment of legislation. Ex varte
Fercruson; 15 S.W.Zd 650 (Tex. 1929); Terre11 v. Kinq, 14
S.W.Zd 786 (Tex. 1929).
The legislature has the power to investigate
any subject regarding which it may desire
information in connection with the proper
discharge of its function to enact, amend or
repeal statutes or to perform any other act
delegated to it by the constitution. . . .
A legislature in conducting whatever ingui-
sitions the proper exercise of its functions
require, must be as broad as the subject to
which the inquiry properly entered into has
relation.
Mason, Manual of Leqislative Procedure, 9795 (1970). As
the Texas Supreme Court declared in Terre11 v. Kinq:
Not only does the Constitution, in the grant
of the rule-making power [by means of which
p. 4248
Honorable Bob Bullock - Page 25 (JM-872)
each house is empowered to organize itself],
authorize either-house to name such commit-
tees as it may deem necessary or proper for
purposes of investigation and inquiry, when
looking to the discharge of any legitimate
function or duty of such house, but the
Constitution goes further and makes
consideration by a committee, a condition
precedent to the enactment of any law.
Section 37, article 3.
14 S.W.2d at 789.
Generally, however, the legislative power to
investigate is not absolute, see, e.a., Gibson v. Florida
Legislative Investisation Committee, 372 U.S. 539 (1962);
State ex rel. Fatzer v. Anderson 299 P.2d 1078 (Kan.
1956) ; Commonwealth ex rel. Car&i v. Brandamore. 327
A.2d 1 (Pa. 1974). and it has been held to be lim ited to
the obtaining of information on matters that fall within
the proper field of legislative action. See.e.a.,
Ferrantello v. State, 256 S.W.Zd 587 (Tex. Crim. App.
1952); State ex rel. Fatzer v. Anderson, sunra; Common-
wealth ex rel. Carcaci v. Brandamore, suora. The powers of
an investigating committee, subject to limitations on the
investigating power of the legislature, are in general as
broad as the resolution constituting it. Ex narte Wolters,
144 S.W. 531 (Tex. Crim. App. 1912).
It is a principle of constitutional law that
where there is a grant of power in the
Constitution to a department of Government,
or to a constitutional or statutory officer,
or tribunal, without defining the manner or
form in or by which it is to be exercised
and carried into effect, the Legislature may
legitimately prescribe reasonable rules by
which this may be done. And though such
power may not be taken away by the Legisla-
ture, and should it fail or refuse to
legislate so as to provide for the efficient
use and exercise of the power, the depart-
ment , officer, or tribunal to whom it is
P
delegated might possibly act in accordance
with its own discretion, yet when the
Legislature has made reasonable and
appropriate provisions for its proper
exercise, it should and will be exercised in
conformity with such provisions.
p. 4249
Honorable Bob Bullock - Page 26 (JM-872)
Austin v. Gulf. Colorado. and Santa Fe Railroad Co., 45
Tex. 234, 265 (1876). But it is in no way certain that
article III, section 49a, fails to set forth the manner or
form by which you are required to perform your duty. See.
-, Attorney General Opinion WW-640 (1959) (holding
unconstitutional in part the predecessor statute to
article 4348a, V.T.C.S., now codified as Government Code,
§5403.013, 403.121-403.122). This. office declared in
Attorney General Opinion JM-666 (1987):
In Attorney General Opinion WW-640
(1959), Attorney General Will Wilson
considered the constitutionality of a bill
that, among other things, attempted to
control the Comptroller's estimates of the
outstanding but undisbursed appropriations
to be expected at the end of a biennium.
The opinion concluded, 'Insofar as this bill
attempts to make estimates it is unconstitu-
tional as a legislative invasion of the
duties of the comptroller.'
The bill at issue there, with the offend-
ing provision 'making estimates1 deleted,
became article 4348a, V.T.C.S., still
extant. The remainder of the bill, in the
form it was considered by Attorney General
Wilson, was characterized as an instruction
to the Comptroller 'to use the cash
accounting basis' and was pronounced
constitutional inasmuch as, according to the
opinion:
Reading Section 49a of Article III from
its four corners, it is our opinion that
this constitutional provision contem-
plates that the Comptroller, in making
his estimate for certification of bills,
use the cash accounting method.
Thus, article 4348a. V.T.C.S.. is to be
read not as a legislative mandate defininq
the Dower of the Comntroller under section
49a with resoect to certifications or esti-
mates made for the ourvose. but. rather. as
a direction that he conform to the reciuire-
ments of section 49a itself bv usina the
cash accountins method in arriving at his
estimates for that nurnose. (Emphasis
added.)
p. 4250
Honorable Bob Bullock - Page 27 (JM-872)
For purposes of this opinion, we accept the assertion
that the means and manner by which you must perform the
budget certification/revenue estimate certification
processes are set forth in the constitution with suffic-
ient specificity such that the legislature is without
authority, absent a constitutional amendment, to direct
you in the manner in which you carry out your constitu-
tional responsibilities. It necessarily follows that the
legislature is without authority to inquire into the
manner and method by which you arrive at the budget
certification/revenue estimate figures, if the purpose for
which it seeks the information'is to enact legislation.
But, article XVII, section 1, of the Texas Constitution
reposes in the legislature the sole authority to propose
amendments to the constitution; the issue then focuses
upon the authority of the legislature to inquire into the
manner and method by which you perform your constitutional
duties if such inquiry is done in aid of determining the
need for any such amendments.
We are not unmindful of the importance of this
question: indeed, it goes to the very heart of the nature
of the kind of government that we have. Texas, unlike
many states; sets forth in its constitution the duties and
responsibilities of many of its state officers. If we
permit the State Auditor and the Legislative Audit Commit-
tee, under the guise of performing "economy and efficiency
audits" or "effectiveness audits" to inquire into the
manner by which you perform the duties reposed in you by
the constitution of this state, we perforce would have to
permit such an E'audit@'inquiry into the manner in which
other constitutional officers perform their constitutional
duties. We would have to permit the Legislative Audit
Committee and the State Auditor to inquire into the manner
by which the Governor exercises his appointment power and
his authority to veto legislation. We would have to
permit the Legislative Audit Committee and the State
Auditor to inquire into the manner in which the justices
of the Texas Supreme Court and the Texas Court of Criminal
Appeals administer their respective caseloads and deliber-
ate and arrive at their decisions. We would have to
permit the Legislative Audit Committee and the State
Auditor to inquire into the manner in which the Attorney
General advises and represents state agencies.
We do not resolve here the issue as to the scope that
any such legislative inquiry could possess. We think that
your question raises the significant issue as to whether
the direction or guidance instructing any such investigat-
ing committee must be reasonably specific and whether any
p. 4251
Honorable Bob Bullock - Page 28 (JM-872)
resolution constituting such investigation must be
inveighed with sufficient dignity to convey the extreme
significance of what is undertaken. We question whether a
mere decision by the State Auditor and the Legislative
Audit Committee to so investigate, under the guise of
conducting an "economy and efficiency audit" or an
"effectiveness audit," is sufficient. We need not,
however, determine whether the State Auditor and the
Legislative Audit Committee may conduct an "economy and
efficiency audit" or an "effectiveness audit" for the
purpose of making an inquiry into the manner in which you
perform the duties reposed in you by the Texas
Constitution. We need note only that nothing in the
Government Code purports to confer such authority in the
first place. Subsection (e) of section 321.013 permits
the Auditor to examine, for example, whether subscription
material exists, but not the use to which it is put. Nor
does it authorize an inquiry into discretionary decision-
making by you that is personal to you as a constitutional
officer. We add that the Legislative Audit Committee, of
course, has no authority to direct you in the manner in
which the budget certification/revenue estimate figures
are derived.
Finally, you ask whether the State Auditor has the
. authority to direct an executive agency or officer to seek
amendments to the laws or to evaluate the agency or
officer on the basis of whether such amendments are
sought. The answer to your question is clearly %o."
It is well established that a state agency has only
those powers expressly granted to it by statute or
necessarily implied from the statutory authority conferred
or duties imposed. Citv of Sherman V. Public Utilitv
Commission, 643 S.W.2d 681, 686 (Tex. 1983); Stauffer v.
Citv of San Antonio, 344 S.W.Zd 158, 160 (Tex. 1961);
Attornev General Oninions JM-452 (1986); JM-256 (1984) ;
MW-532 (1982); V-5Oi (1948); 0-4260‘(1942): O-3536 (1941j.
We need not address whether any statute constitutionally
could confer such authority on the State Auditor, because
we conclude that no statute purports to do so. We have
found no section of the Government Code nor any other
statute that purports to confer such authority upon the
State Auditor; accordingly, he has none.
p. 4252
Honorable Bob Bullock - Page 29 (374-872)
SUMMARY
1. No provision in chapter 321 of the
Government Code, which sets forth the duties
of the State Auditor and the Legislative
,.Audit Committee, purports to confer
authority on the committee to direct
executive agencies in the manner in which
they execute or administer the laws.
2. No provision in chapter 321 of the
Government Code purports to confer authority
on the State Auditor to direct executive
agencies in the manner in which they execute
or administer the laws.
3. Sections 51.005 and 61.005 of the
Education Code are unconstitutional insofar
as they purport to confer authority on the
State Auditor to promulgate rules jointly
with the College Coordinating Board.
4. Legislative committees properly may
gather information and conduct investiga-
tions upon any matters about which legisla-
tion may be enacted.
5. Because the Texas Constitution
reposes in the legislature sole authority to
propose constitutional amendments, legisla-
tive committees may gather information and
conduct investigations in aid of such auth-
ority. However, it is questionable whether a
mere decision by the Legislative Audit
Committee and the State Auditor to so
investigate, under the guise of conducting
an "economy and efficiency audit" or an
"effectiveness audit," is sufficient to
permit such a serious intrusion into the
performance of constitutionally imposed
duties as is here contemplated by an inquiry
into the methods and means whereby you
derive the budget certification/revenue
estimate figures. This issue need not be
decided, because nothing in the Government
Code purports to confer the authority to
conduct such an inquiry in the first place.
The Legislative Audit Committee may not
direct the manner in which the Comptroller
derives such estimates.
p. 4253
Honorable Bob Bullock - Page 30 (JM-872)
6. The State Auditor possesses
authority either to direct an executitz
agency or officer to seek amendments to the
laws or to evaluate the agency or officer on
the basis of whether such amendments are
sought.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
IOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAELEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jim Moellinger
Assistant Attorney General
p. 4254