Untitled Texas Attorney General Opinion ( 1962 )

Mr. H. D. Dodgen Opinion No. WW-1439
Executive Secretary
Game and Fish Commlsslon Re: Validity of Item l2b
Austin, Texas of the current appro-
priation for the Game
and Fish Commission,
Ch. 62, Acts 1961, 57th
Leg., 1st Called Ses-
sion, regarding construc-
tion of piers, ramps and
Dear Mr. Dodgen: related questions.
Your request for an opinion reads as follows:
"Your opinion WW-959 dated November 15,
1960, in response to a request from this Depart-
ment held that 'The Legislature has not author-
ized the Game and Fish Commission to expend
funds from the (Special) Game and Fish Fund'
for the construction of~piers Into the Gulf
of Mexico or inland bays for the purpose of
accommodating the public In recreational
fishing activities.'
.
"Item 12b of the current appropriation
for the Game and Fish Commission, Ch. 62. Acts
1961, 57th Legislature, 1st Called Session, p.
203 at p. 293, reads as follows:
For the Years Ending
August 31, August 31,
1962 1963
b. For construction $ $
of piers, ramps,
restrooms, and
shelters for the
use of fishermen
in State Parks
along the Gulf
Coast and other
areas of the State,
including NTE $8,000
for rehabilitating
Mr. H. D. Dodgen, page 2 (W-1439)
the Port Lavaca pier,
out of receipts to
the Special Game and
Fish Fund derived from
fishing licenses. . . .
. . . . . . . . . . $100,000 $100,000
"The Game and Fish Commission has not expended
the funds thereby appropriated, in the belief that
the appropriation is void by reason of a lack of
pre-exlstln law, Article 3, Sec. 44, Constitution
of Texas, 1%76. A bill was introduced at the
Regular Session of the 57th Legislature which
would have specifically authorized such an ex-
penditure; however, it did not pass.
"In view of the fact of the appropriation,
It is deemed advisable again to seek the opinion
of the Attorney General in respect to the question:
"Is the appropriation contained in
Item 12b, supra, a valid and effec-
tive appropriation?"
Attorney General's Opinion WW-959 (1960) held that
the Legislature had not authorized the Game and Fish Commission
to construct piers into the Gulf of Mexico or the inland bays
for the purpose of accommodating the public in recreational
fishing activities.
House Bill 710, introduced at the Regular Session of
the 57th Legislature, would have expressly authorized the ex-
penditure contained in Item 12b of the appropriations for the
Game and Fish Commission. However, this bill was not passed
out of the Game and Fish Committee of the House.
Article III, Section 44 of the Texas Constitution
provides as follows:~
"Sec. 44. The Legislature shall provide by
law for the compensation of all officers, serv-
ants, agents and public contractors, not provided
for in this Constitution, but shall not grant
extra compensation to any officer, agent, serv-
ant, or public contractors, after such public
service shall have been performed or contract
entered into, for the performance of the same;
Mr. H. D. Dodger% Page 3 (WW-1439)
nor grant, by appropriation or otherwise, any
amount of money out of the Treasury of the State,
to any individual, on a claim, real or pretended,
when the same shall not have been provided for
by pre-existing law; nor employ any one in the name
of the State, unless authorized by pre-existing
law."
On the basis of the provisions of this Section, it
has been uniformly held that an appropriation by the Legis-
lature is void, If not authorized by pre-existing law. State
v. Haldeman, 163 S.W. 1020 (Civ.App. 1913, error ref.); mn
National Dank v. Sheppard, 123 Tex. 272, 71 S.W.2d 242 (1934);
Corsicana Cotton Mills v. Sheppard, 123 Tex. 352, 71 S.W.2d.
247 (1934).
Therefore, you are advised that the appropriation
contained in Item 12b, supra, is void by reason of the absence
of pre-existing law.
SUMMARY
Item 12b of the Current Appropriation for
the Game and Fish Commission, Ch. 62, Acts 1961,
57th Legislature, 1st Called Session, regarding
the construction of piers, ramps, and related
structures is void by reason of the absence of
pre-existing law.
Very truly yours,
WILL WILSON
Attorney General of Texas
IRW:mkh
Assistant
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Robert Rowland
Norman Suarez
Grady Chandler
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore