Untitled Texas Attorney General Opinion ( 1952 )

March 20, 1952
Hon. M. B. McCoy, D. C. Opinion No. V-1423
President, Texas Board of
Chiropractic Examiners Re: Legality of defraying from
Austin, Texas Item 6 of the Board’s cur-
rent appropriation certain *
expenses necessary to ob-
tain evidence of violations
Dear Sir: of the Chiropractic Act.
We quote from your request for an opinion of this office:
as follows:
“This Board now has an Investigator checking Chiro-
practic offices throughout the State. Several cases in-
volving a violation of the Chiropractic Law have been
settled and disposed of by suspension and cancellation
of licenses after a hearing conducted by the Board under
the provisions of Section 14 of the Chiropractic Act.
“Experience has indicated that we will not be able
to obtain adequate and competent evidence to justify
prosecution for violations of the Act, unless our In-
vestigator is able to incur reasonable expenses in con-
nection with obtaining evidence. By this, I mean that
in certain cases, he may be required to pay for a
chiropractic adjustment. He may have to obtain certi-
fied copies of recorded instruments. He may need on
the spot secretarial help in connection with taking an
affidavit or in some instances, it will be necessary to
have pictures taken.
“As the situation now stands, we are ~informed that
items of expenditures, such as the above, cannot be paid
from the Chiropractic Fund. This will seriously handi-
cap the Board in the effective enforcement of the pro-
visions of the Act. It is necessary that we determine
just how far we can expect the Comptroller’s Depart-
ment to go in allowing expenditures, such as the above,
to be paid out of our appropriation.
“Question: In the enforcement of the Chiropractic
Act, can this Board, through its Investigator or Board
members, incur expenses such as listed above, and if
..
Hon. M. B. McCoy, D. C., page 2 (V-1423)
the answer is in the affirmative, can the Comptroller
approve such expenditures for payment? ”
The Chiropractic Act is codified as Article 4512b, Vernon’s
Civil Statutes. That law creates the Texas Board of Chiropractic
Examiners and outlines its purposes and duties. Under Section 14
of this act, the Board is vested with authority to revoke, cancel,
or suspend the license of any person, or refuse to admit persons
to its examinations and to issue licenses to practice chiropractic,
after legal notice and a full and impartial hearing, for any of the
reasons designated in paragraphs numbered 1 through 7. These
reasons are listed as follows:
“1. For failure to comply with, or the violation of,
any of the provisions of this Act;
“2. If it is found that said person or persons do not
possess or no longer possesses a good moral character
or is in any way guilty of deception or fraud in the prac-
tice of chiropractic;
“3. The presentation to the Board, or use of any
license, certificate, or diploma, which was illegally or
fraudulently obtained, or the presentation to the Board
of any untrue statement or any document or testimony
which was illegally or fraudulently obtained, or when
fraud or deceit has been practiced in passing the examin-
ation;
“4. Conviction of a crime of the grade of a felony, or
one which involves moral turpitude, or the procuring or
assisting in the procuring of a criminal abortion;
-5. Grossly unprofessional or dishonorable conduct
of a character likely to deceive or defraud the public;
habits of intemperance, or drug addiction, or other
habits calculated in the opinion of the Board to endanger
the lives of patients;
“6. The use of any advertising statement of a charac-
ter to mislead or deceive the public;
“7. Employing directly or indirectly any person or
persons whose license to practice chiropractic or any
of the healing arts has been canceled, suspended or re-
voked, or the association in the practice of chiropractic
with any person or persons whose license to practice
chiropractic or any of the healing arts has been canceled,
suspened or revoked, or any person or persons who have
Hon. M. B. McCoy, D. C., page 3 (v-1423)
been convicted of the unlawful practice of any of the
healing arts in any State, territory or district.”
Section 14 further grants to persons aggrieved by any such
action of the Board the right to have such issue tried in a proper
district court of this State as therein provided.
Section 11 of the Chiropractic Act provides:
“The fsnds realized from the fee,s collected under
this Act [see Secs.d, 9, and 101 shall con&it&e the
‘Chiropractic Examiners Fund” and shall -be applied to
the payment of ‘necessary expenses of%e Texas Board
of Chiropractic Examiners, includingthe expenses au-
thorize~d,by said Board in snfmcirrg-,the provisions of
this Act, and ~to compensate .members~ .nf the Board for
the time actually s~pent in discharge of their official
duties, in the sum of Ten Dolla,rs ($10) per day, plus
their actual and necessary expenses.
“All disbursements from said.fund shall be made
only upon written approval of the president zmd ~secretary-
treasurer oft the s I . Board ~ 0 *, and upon warrants drawn
by the ComptroIler to be paid out,,of .said~.fund.” ,(Emphasis
added throughout .)
Section 2 provides that the Board “shall defray all expenses
under this Act from fees provided in this Act.”
The current biennial appropriation~bill (H-B. 426, Acts 52nd
Leg., R.S. 1951, ch. 499, at p. 1320) appropriates to the Board out
of the Chiropractic Exammers Fund as follows:
‘TEXA,S BOARD OF CHIROPRACTIC EXAMINERS
(Out of~Chiropractic Examiners Fund)
Personal Services For~,the Years Ending
(Salaries and Wages) August -31, August 31,
1952 1953
1. Board Members per Diem. ~ $ 4.660.00 $ 4,680.OO
2. Executive Secretary. (I D I . e 3,840.OO 3,840.OO
3. Secretary-Bookkeeper I . . . 2,640.OO 2,640.OO
4. Investigator. , . I . . . . . D. 3,640.OO 3,840,OO
Total a ~ 0 . 0 . n . I m0 . . $15 000 00 $15 00 00
Travel Expense . 0 . . . . a . 4:800:00 4:~oo:oo
2: Printing, postage, telegraph,
telephone, office rent, equip-
ment, bond premiums, re-
pairs, stationery, office sup-
plies and contingent expenses. 4,250.OO 4,250.OO
Grand Total - Texas Board of
Chiropractic Examiners. . . . e $24,050.00 $24,050.00”
.
Hon. M. B. McCoy, D. C., page 4 (V-1423)
In Attorney General’s ,Opfnion Q-6638 (1945) ~&was held that
expenses of the nature here ~invalved coatd not be paid.unless there
was an express appropriation for th-atspecific purpose. An examin-
ation of ~that opinion rweals~fhat no ~considirrntion was given to the
appropriations madefor “contingent expense”by Item 5 pf Senate
Bitt 33t;‘rP8th Leg., ‘l9’@3, ch:4%3, ‘p~.,8-&5, st Q. 969. Furthermore,
the holding was predicated on Attorney Ge-l%Opirrion O-4222
(194l), involving a consideration,,~the‘t941 appropriation to the
State Board or’Medicai Examinersbill (S.B. 423, AcCs47th Leg.,
‘B.S. 1941; ch. ,5?I; p. llfrf eat p. i204) which did.nut contain a speci-
‘fit appropriation for ‘“contingent ‘expense. * For ~this reason we
do not ,believe ,these opinions are controlling in arriving at an
answer to your question
Item 6 of the-~above appropriti~irm``ppropriates a 1nit-1~ sum
amount to cover’ certainenumerated specific ~purposes land also
“contingent expenses.” Your qnestionwith``ragard to defraying
from Item 6 of the appropriation certain,exQenses mcsesary to
obtain evidence ~ofviolation of the Chiropractic Act involves the
determination of the meaning to be ascribed to the term “contin-
gent expenses. 1(
The term “contingent expenses ” is~frequently: used to con-
note fufure expenses of an unknown and uncertain nature which
may or may not’be incurred, and which depend on some future
uncertain event. S~cott v. City of Jamestown, 21~N.W. 668, 673
(N; Dbk. Sup. W>. It is sometime~s used to~refer ton& expenses
as are “poss~ible or liable, but n~ot certain to occur.(( Brannin v.
Sweet Grass County, 293 P. 978, 972 (Mbnt. Sup. 1930).
In Dunwoody v0 United States, 22 Ct. Cl. 269, 280 (lJ387),
it is said:
“The adjectives contingent, incidental, and miscel-
laneous, as used in appropriation bills to qnalifg.-the word
expenses, have a technical and,welldunderstood meaning;
it is~usuaI’for Congress to name the principal classes of
expenditure which they authorize, such as clerk hire,
fuel,‘.light, posta~ge, telegrams, etc., and then to make a
small appropriation for the minor and unimportant dis-
.‘bursements incidental to any greatbusiness, which can-
not well,be for~eseen, and which it would-be.useless to
specify more accurately, For such disbursements, a
round sum is appropriated under the head of ‘contingent
expenses’, or ‘incidental expenses’, or ‘miscellaneous
expenses.’ ”
In Attorney General’s Opinion O-906A (1939), it was pointed
out that an appropriated “contingent” fund in itself ordinarily im-
Han, M. B. McCoy, D. C., page 5 (V-1423)
plies unpredictable items of cost or expense. So, where the
Legislature has foreseen various expenws-and provided for
them definitely, funds provided f~or ‘contingent expense” cannot
be used to supplement expenditures for items for which the
Legislature made definite and specific provision, unless the
context of the appropriation requires a contrary interpretation.
Ordinarily, moneys of the contingent fund are to be used for
purposes for which the Legislature made no specific itemized
provision.
In Attorney General’s ,Op?nion O-1294 (1939) it was stated
that the appropriations for *contingent expenses” appearing in
the 1939 appropriation act were intended by the Legislature to
provide lump sum appropriations for those expenditures of a
department for which the Legislature did not deem it necessary
or expedient to make specific and separate itemized appropria-
tions. We think a like intent should be applied to the appropria-
tion under consideration here. In short, we think the appropria-
tion available in Item 6 for ‘contingent expenses” &as intended
by the Legislature for minor disbursements incidental to carry-
ing out the purposes of the Chiropractic Act not elsewhere therein
provided for.
It is clear that the questioned expenditures would be for
a purpose authorized by the Chiropractic Act. Section 11 of the
act provides that, among other purposes, the Chiropractic Exami-
ners Fund “shall be applied to the payment of necessary expenses
. . . authorized by said Board in enforcing the provisions of this
Act.” Section 14 empowers the Board to conduct hearings on the
revocation, cancellation,-suspension, or withholding of licenses
for persons who violate or fail to comply with that law. You have
advised that the Board cannot effectively enforce the provisions
of this Act unless your investigator may incur reasonable ex-
penses in obtaining adequate and competent evidence that will
justify prosecution for violations thereof.
Accordingly, in view of the absence in the Board’s cur-
rent appropriation of a specific item for enforcement purposes,
it is our opinion that funds in Item 6, which are available for
“contingent expenses,” may properly be used in the payment of
expenses in obtaining necessary evidence for prosecutions, pro-
vided the Board shall have first authorized the incurring of the
expense toward the enforcement of the law. Under suitable cir-
cumstances any of the expense items enumerated in your letter
would be a proper expense in the enforcement of the Chiropractic
Act. Furtheremore, under Section 11 of Article 4512b, the Comp-
troller can legally draw a warrant for the payment of such expendi-
tures.
Hon. M. B. McCoy, D. C., page 6 (V-1423,)
SUMMARY
Item 6 of the curr~ent ~bienniat ,appropriation of the
Texas Board of Chiropractic Examiners (H.B. 426, Acts
52nd Leg., R.S. 1951, ch. 499; Art. III, Sec. 1, p. 1320),
which includes “contingent expenses” among~ its pur-
poses, may -be used in the payment of expenses incurred
in otitaining evidence of violations of~the provisions of
the Chiropractic Act, provided the Board~authorizes the
incurrence of the expense. Art. 4512b, Sets. 2, 11, 14,
V.C.S.
Yours very truly,
APPROVED: PRICE DANIEL
Attorney General
Mary K. Wall
Reviewing Assistant
Charles .D. Mathews
First Assistant Chester E. Ollison
Assistant
CEO:meh