Untitled Texas Attorney General Opinion ( 1953 )

September 4, 1953
Hon. Tom Scaly Opinion No. S-98
Chairman, Board of Regents
The University of Texas Rt : Authority of The University
Austin, Texas of Texas and its branches
to expend funds appropriated
by the General Appropriation
Bill for the biennium ending
August 31, 1955, for the pur-
posts of providing air condi-
tioning for existing State
buildings at such institutions
or for the purchase of room
air conditioning machinery or
Dear Mr. Sealy: units.
Your request for an opinionreads tn part:
“Your opinion is respectfully requested
upon whether or not funds appropriated to The
‘University of Texas and its branches by House
Bill No. 111 passed by the General Appropria-
tion Bill for the biennium ending August 31,
1955, may be used on and after September 1,
1953, for the purpose of providing air condi-
tioning of existing buildings at such respective
institutions or for the purchase of room air
conditioning machinery or units.”
The 52nd Legislature included within the General
Appropriation Act (Sec. 37, Art. V, Ch. 499, Acts 52nd Leg.,
1951, at p. 1947, approved June 28, 1951), a provision prohi-
biting the expenditure of any funds appropriated to agencies of
higher education, including The University of Texas, for the pur-
chase of new or additional air conditioning or refrigerating
equipment for any purpose (with certain exceptions not here ptr-
Hon. Tom Scaly, page 2 (S-98)
tintnt) during the biennium beginning September 1, 1951.
The same Legislature also passed House Concurrent Reso-
lution No. 38, approved May 10, 1951, which declared. in ef-
fect, that numerous budget requests had been presented to
the Legislature for the appropriation of funds for air condi-
tioning State buildings and purchase of air conditioning ma-
chinery and room air conditioning units, and that it was tco-
nomtcally unsound to air condition State buildings, except
new construction, or to purchase air conditioning machinery
or units for use therein. Therefore the policy of the State of
Texas was not to permit the use of State funds for air con-
ditioning State buildings, except new construction, or for the
purchase of room air conditioning machinery or units.
The 53rd Legislature failed to include any pro-
hibition in the General Appropriation Act (Ch. 81, Acts 53rd
Leg., 1953, p. 127) as to the expenditure of funds by agencies
of higher education or any other governmental department or
agency for the purpose of air conditioning State buildings,
either old or new, or for the purpose of p’urchasing air. con-
ditioning units for uat therein, and expressly omitted the pro-
hibitory clause containtd,in Section 37, Article V, of the Gtn-
~&ral Appropriation Act of?~the 52nd Legislature.
The legal proposition here involved is whether the
expenditure of funds under the General Approprtatton Act of
the 53rd Legislature is governed by the directive contained in
H.C.R. No. 38 of the 52nd Legislature.
I
The Constitution clearly rtcognists the right of
the Legislature to express its will by resolution (Art. III,
Secs.,34, 38; Art. IV, Sec. 15, Constitution of Texas), but
there is a marked distinction between a law and a resolution.
As was stated in Conlty v. United Daughters of the Confederacy,
164 S.W. 24, 26 (Ttx. Civ. App. 1913, error ref.):
“The chief distinction between a resolution
and a law stems to b,e that the former is used
whenever the legislative body passing it wishes
to merely express an opinion as to some given
Hon. Tom Staly, page 3 (S-98)
matter or thing, and is only to have a temporary
effect on such particular thing; while by the lat-
ter it, is intended to permanently direct and con-
trol matters applying to persons or things in gtn-
tral. . . . n
A concurrtct resolution of the Legislature does
not have the effect of a statute. Terre11 Wells Swimming
Pool v. Rodriguez, 182 S.W.2d 824, 826 (Ttx. Civ. App. 1944,
error ref.) and the general rules governing the interpreta-
tion of statutes art likewise applicable to resolutions. (2
Sutherland on StAtutory Construction, 262).
It is significant that tht General Appropriation
Act of the 53rd Legislature does not contain the prohibitory
provision against the expenditure of appropriated funds for
the purpose of air conditioning buildings or the purchase of
air conditioning units for agencies of higher education. It is
a rule of statutory construction that the mere fact that signi-
ficant words are omitted from the re-enactment or amtnd-
mtnt of a statute imports a conclusive presumption that the
Le~gislaturt intended to exclude the object theretofore accom-
plished by the abandoned words. San l$arcos Baptist Academy
v. Burgess, 292 S.W. 626 (Ttx. Civ. App. 1927, plea of privi-
lege case, no writ history).
In Terre11 V. King, 118 Tex. 237, 14 S.W.2d 786
(1929), it was held that the Legislature, which had enacted a
law making an appropriation for its contingent expenses, could,
by joint resolution approved by the Governor, direct the tx-
ptnditure of a portion of the appropriation in financing a ltgis-
lativt committee which was lawfully created, and that since
the purpose was of a temporary nature only, the joint resolu-
tion was the proper method of authorieing ~tht expenditure of
the funds which had been previously appropriated in accordance
with law. The Court then said:
“It is no longer an open question in Texas
that a joint resolution of both Houses, approved
by the Governor, reflects the command and will
Hon. Tom Staly, page.4 (S-98)
of the State in one of the modes prescribed
by the Constitution and is as binding as a sta-
tutt. ‘I
The Court cited no authorities in support of the quoted dic-
tum, but it is our opinion that such dictum is not controlling
in view of the action of the Sunreme Court in refusint P the
application for writ of error in Terre11 Wells Swimming Pool
v. Rodriguez, supra, in 1944.
In Moshtim v. Rollins, 79 S.W.2d 672 (Tex. Civ.
App. 1935, error dism.), it was held that a resolution passed
in aid of a statute falls when such statute is declared uncon-
stitutional. Here the resolution passed in aid of the General
Appropriation Act of the 52nd Legislature, by analogy must
cease to have any effect upon the expiration of the General Ap-
propriation Act of the 52nd Legislature. The Legislature,
through a concurrent resolution, may express a policy which
would control the interpretation of statutes passed by that Leg-
islature only.
In view of the fact that H.C.R. No. 38 is a mere
expression of an opinion by the 52nd Legislature that the ex-
penditure of funds for air conditioning of buildings under the
control of agencies of higher education was economically un-
sound at the time of the passage of the General Appropriation
Act for the biennium commencing September 1, 1951, and since
as a matter of law a resolution has only a temporary effect as
to such appropriation, it is our opinion that the 53rd Legisla-
ture did not consider such concurrent resolution to be binding
upon or express the opinion of that body in enacting the General
Appropriation Act for the biennium beginning September 1, 1953,
having purpost,ly omitted therefrom any -provision .prohibi$ing any
State agency or department from expending appropriated funds
for the purpose of either air conditioning State buildings or
purchasing air conditioning units to be used therein.
SUMMARY
Funds appropriated to The University of
Hon. Tom Staly, page 5 (S-98)
Texas and its branches by. the General Appro-
priation Bill for the biennium ending August 31,
1955, may be used for the purpose of providing
air conditioning for existing State building’s at
such institutions or for the purchase of room
air conditioning machinery or units.
APPROVED: Yours very truly,
Mary K. Wall JOHN BEN SHEPPERD
Reviewer Attorney General
Burnell Waldrtp
Reviewer
By c%u
Robert S. Trotti C. K. Richards
First Assistant Assistant
John Ben Shtpptrd
Attorney General
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