Untitled Texas Attorney General Opinion ( 1957 )

Hon. Raymond W. Vowel1 Opinion No. ww-252
Acting Executive Director
Board for Texas State Hospitals RE: Validity of Appro-
and Special Schools prlatlons to pay the
Box S, 'CapitolStation salaries of the Sj+er-
Austin, Texas intendent and the
BijsinessManager of
the A.stin State
Dear Mr. Vowell: School Farm Colony.
You have requested an opinion as to the legality
of the payment of salaries to the "Superintendent and to
the "BusinessManager" of the Austin State School Farm
Colony as is provided in the AppropriationAct passed by
the 55th Legislature.
In other words, you desire to know whether these
salaries may be lawfully paid to the named "Superintendent"
and "BusinessManager" of the Austin State School Farm
Colony.
Our answer to both questions is in the affirmative.
We advise that the salary of a Superintendentand the
salary of a Business Manager for the Austin State School
Farm Colony may legally be paid from the funds appropria-
ted for that purpose by the Texas Le islature,Regular
Session of 1957, Chapter 385, pages %92, 893.
The Acts of the Regular Session of the 51st Legis-
lature, Chapter 157, pages 324, 325, and Chapter 316,
pages 588, 589, 590, 591, made and constitutedthe Aus-
tin State School Farm Colony (which already was the pro-
perty of and belonged to the State of Texas) one of the
Institutions which became a unit of the *Texas State Hos-
pitals and Special Schools," created by said Acts. Said
Acts provided for the general government of said "Texas
State Hospitals and Special Schools" by a Board, and this
Board was authorized by the Legislature to.employ an
"ExecutiveDirector and such other personnel necessary
to carry out the provisions of this Act." The provisions
of the Act set out at lennth the duties. DOWCFS, and
responsibilitiesof the Superintendent(see Artlcle 3174B;
Section 10, and Articles 3175, 3176. _ ~. and 3178, Ver-
3 3177
non's Civil Statutes). Inasmuch as "the provisions of
Hon. Raymond W. Vowell, Page 2 (WW-252)
the Act," regarding "Superintendents"and their duties
obviously could not be carried out without there being
Superintendexits,the Act necessarily authorizedthe employ-
ment of Superintendents. Article 3174B, Vernon’s Civil
Statutes, specificallyprovides that "the Superintendent
of any institutionnamed herein" (and Austin State School
Farm Colony was one of the institutionsspecificallyso
named) "with the approval of the Executive Director may
appoint a Business Manager."
From the foregoing it Is seen that the Texas
State School Farm Colony is one of the units composing
the Texas State Hospitals and Special Schools, so created
and named by the legislativeact, and that It may, as
such, have a Superintendentand a Business Manager. Such
la our interpretationof the applicable statutes.
The same 51st Legislaturewhich passed the Acts
creating the Austin State School Farm Colony as an lnsti-
tutlon which was a unit of the aggregationof institutions
constitutingthe Texas State Hospitals and Special Schools,
Itself construedthe mentioned laws as we have here con-
strued such laws. The said 51s.tLegislature,in the
General AppropriationAct of 1949, enacted at the same
session of the Legislature which fixed the legal status
of the Austin State School Farm Colony as above indicated,
provided a total of $2883000 for the operation of said
Austin State School Farm Colony as an Integral part of
the Texas State Hospitals and Special Schools, for the
year ending August 31, 1950. This AppropriationAct
significantlyprovided $5,004.00 for the salary of a
"Superintendent"and $3,600.00 for a "BusinessManager"
(see Acts of 51st Legislature,Chapter 553, page 1073.)
Inasmuch as the same Legislature which made the
Austin State School Farm Colony a unit of the Texas State
Hospitals and Special Schools enacted this appropriation
bill for its support and in the Bill provided for the
payment of a salary to the Superintendentand a salary
to the Business Manager, this Is in substanceand effect
a constructipnof the'leglslativeacts herein mentioned
by the Legislaturewhich enacted them and said construc-
tion is the same as the one made by us above.
It has been held by the Texas courts that a con-
struction of a legislativeact or acts, when made by the
same LegislatureIn another act, has great welRht if not
controllingeffect, because It plainly shows the legis-
lative intent in the passage of the act under consldera-
tion, First National Bank v. City of Port Arthur,
( Civil Appeals ) 35 S.W.2d 258 (holding that a
.
Hon. Raymond W. Vowell, Page 3 (WW-252)
contemporaneousand practical constructionby the Leglsla-
ture Is presumptivelycorrect);Houston 011 Company v.
Grlggs, (ClvliAppeais) 181 Siti. ___ .
sion of Appeals) 213 S.W. 261.
In the case of Stephens County v. Hefner, 16 S.W.
26 804,,lt was held by the Commission of Appeals of
Texas as follows:
"(3) Legislative lnterpretatlon of an
Act is entitled to be given weight, and where
It is an Interpretationmade by the very Leg-
islature which passed the Act In question,
it should be of controllingeffect.
v. Yoakum County, 109 Tex. 42, 195 S.F=%=
. 11 9;
State v. Houstcz-Oilm Comoanv {Tex; Clj7.ADD;)
194tianAtiantlc Insurance
co., 20 Wall. 323,
K-13462. Murdock v. Memphis, 20 Wall. 590,
22 L. Ed. 429. u S V. Claflin, 97 U.S. 546,
24.L.Ed. lo&." ,.
Each regular session of the Legislature.whlch
has convened since the passage of the Acts of 1949 and
since the Interpretationof these Acts by the 5lst Leg-
islature which enacted them, has made the same lnterpre-
tatlon of these acts as was~made by the Legislature of
1941 and as is made by us In this opinion.
The regular session of the 52nd Legislature, In
1951, made a total appropriationof $304,042.00for the
operation of the Austin State School Farm Colony for
the year ending August 31, 1952, and $280,000.00 for the
year ending August 31, 1953. In this appropriationbill
there was provided for the Superintendenta salary of
$5,244.00 for each of the two years and there was also
provided a salary of $3,840.00 for the Business Manager
for the same period of time (Ch. 499, p.1259, Acts 52nd
Reg. Ses.).
The AppropriationAct of the 53rd Legislatureof
1953 appropriated for the Austin State School Farm Colony,
for the year ending August 31, 1954, the sum of $296,512.00
and for the year ending August 31, 1955, the sum of
$293,777.00. This appropriationcontained provisions for
the salaries of both the "Superintendent"and the,"Business
Manager" ($ee Acts, 53rd R.S., ch. 81, p. 142).
Referring to the Acts of the 54th Re ular Session,
we find that in ch. 519, pages 1368, 1369, fi'00,578.00
Hon. Raymond W. Vowell, Page 4 (WW:252)
was provided for the Austin State School Farm Colony for
the year ending August 31, 1956, and $873,578.00 waspro-
vided for the year ending August 31, 1957. Items for the
salaries of both "Superintendent"and "$uslncssManager"
were Included.
The last .Leglslature(55th, R.S., ch. 385, pp. 892,
893) appropriated for the Austin State School Farm
Colony, for the year ending August 31, 1958, the sum of
$1,215,298.00and for the year ending August 31, 1959,
the sum of $1,213,287.00. This Act also provided for
the salaries of both "Superintendent"and "Business
Manager."
It is thus apparent that each subsequentLegls-
lature has construed the mentioned Acts of 51st Legls-
laturt of 1949 as said Acts had been construedby the
Legislature which enacted them. While It has been held
that an Interpretationcontained In an Act passed at a
subsequent Legislature is not controlling,floleman
Gas and Oil v. Santa Anna Gas Co., (Comm. App.) b7 S.W..'
2d 241; Cherry v. Magnolia Petroleum Co., (Comm. App.)
45 S.W.2d 555) such interpretationmay be very signifi-
cant and entitled to substantialweight. Texas-Louisiana
Power Co. v. City of Farmersville, )
2d 235; Tillery v. Town of McLean, I@?A,"ipj 46 S.W
2d 1028; Berry v. County Board of School Trustees (Cif.
App.) 42 S.W.2d 129 In Neff v. Elgln, (Civ:App.) 270
S.W. 873, (error ref.) It was held that the construction
of a law by successive Legislaturesfor many years
should have preat weight.
In Cannon's Administratorv. Vaughan, 12 Tex.
199. it was held that "If It can be nathered from a
subsequent statute, in par1 materia,-whatmeaning the
Legislature attached to the words of a former statute,
this will amount to a'Legislatlvedeclarationof Its
meaninn. and will zovern the constructionof the first
statutf:,,````
To like effect was the holding of the Civil
Appeals Court in the case of Silurian Oil CO. v. White,
252 S.W. 569, error ref.
From the foregoing it Is evident that the legis-
lation which made ,theAustin State School Farm Colony
an institution in that group of Institutionswhich com-
prise the Texas State Hospitals and Special Schools,
has been uniformly construed by the Legislaturewhich
enacted it and by each Legislature which has convened
since that time as authorizing the employmentand pay-
ment of a superintendentand a business manager for said
~- . - -
. - _ .
Hon. Raymond W. Vowtll, Page 5 (W-252)
Austin State School Farm Colony.
We do not consider the foregoing mentioned act of
1949 as being ambiguous. We think It clearly constltu-
ted the Austin State School Farm Colony an Integral,
individual unit of the newly created State Hospitals
and Special Schools.
But if the language of said act should be
esteemed to be ambiguous,then we examine the facts of
the operation of.the Austin State School Farm Colony
since the enactment~of1949. On,such examination,we
find that ever since the effective date of said Act the
constructionof same by those officers charged with Its
administrationhas been that the status of the Austin
State School Farm Colony haspbeen the same as stated by
us In this .opinion. The Board for Texas State Hospitals
and Special Schools, the Rxtcutlve Director of said
Board, the Comptroller,the State Treasurer, in their
official acts pertaining to said Austin State School
Farm Colony.have all recognized that it is one of the
units comprising the Texas State Hospital and Special
Schools, being an Individualentity thereof. Uniformly
a superintendenthas been duly employed and also a busi-
ness manager has been duly employed. Contractsof
employment have been entered into by and between said
entity and various employees. The statutory duties
imposed upon the Superintendentand upon the Business
Manager, respectively,have been duly dischargedby
them. The Superintendentand the Business Manager
have been paid salaries out of the appropriationsmade
by successive Legislaturesfor that specific purpose.
It has been held by the Texas courts that sound
public policy requires the resolving of all doubts In
favor of a contemporaneousor practical constructionthat
has been followed with substantialuniformity. (Moorman
v. Terrell, 109 Tex. 173, 202 S.W. 727; Tolleson -Rogan,
gb Tex. 424, 432, 73 S.W. 520,. 24; Manhattan Life Insu-
rance Co. v. Wilson MotorCo.. 2 Civ. AppJ 75 S.W.2d 721,
err. ref.; City of Dallas v. Texas IQnployers' Insurance
Association /Civ. AppJ 265 S W 1113; State v. Houston
and T. C. Railroad Co. Blv. Appg 209 S.W. 820).
The Texas courts have also held that they will
adopt and uphold the constructionbased upon a statute
by a department of the State government or by an executive
officer of that office charged with its administration,
if the statute is ambiguous. (Koy v. SchneSder, 110 Tex.
369, 221 S.W. 880, denying rehearing 218 S.W. 479; State
Hon. Raymond W. Vowell, Page 6 (w-252)
v. Houston Oil Co. Div.
Brown v. City of Amarillo
This rule is held to
administrativeconstruction
rights have been acquired."
109 Tex. 42, 195 S.W..1129;
AppJ 194 S.W. 422, err. ref
made where contractshave been entered Into under such
constructionof the ambiguous statute. (State v. Texas
Mutual Life.InsuranceCo.
reversed on other points
Fisher (Clv. App. 1953)~259 S.W.2d 9 rehearingdenied,
it held that a longstanding departmentalconstruc-
tion of the statute Is entitled to great weight in the
courts and In the case of Associated IndependentCorpo-
rat1on.v. Oil Well Drilling Co. (Civ. App. 1953) 258 S.W
2d 523, rehearingdenied, affirmed 1954 in 264 S.W.2d 6gj,
rehearing denied, it was held that courts are Inclined
to accept an administrativeagency Interpretationof a
statute which has been accepted without challengeover
a long period of time. It was also held in the case
of Union Terminal Co. v. Muldrow (Clv. App. 1955) 279
S.W.2d lb4 rehearing denied, that a departmentalcon-
struction hf a statute extending over a long period of
time -is entitled-to great weight.
Hence, It follows that if the mentioned legisla-
tive act of 1949 should be ambiguous (and we do not
esteem It so), we would, by reason of these departmental
constructionsof It, which are reasonable, and by virtue
of which constructionrights have accrued and contracts
have been made, reach the same conclusion as to the
validity of the payments~of the salaries of the mentioned
superintendentand business manager that we have hereto-
fore stated herein.
Any Attorney General's Opinions which may have held
contrary to the holdings of this opinion, are hereby over-
ruled and withdrawn.
SUMMARY
The salary of a superintendentand the
salary,of a business manager for the
--
: . .‘m ,: *.
Hon. Raymond W. Vowtll, Page 7 (m-252)
Austin State School Farm Colony may
legally be paid from the funds appro-
priated for that purpose by the regular
session of the Texas Legislature of 1957,
in Ch. 385, pp. 892, 893. Any Attorney
General's Opinions which may have held
contrary to the holdings of this opinion,
are overruled and withdrawn.
Very truly yours,
WILL WILSON
Attorney General of Texas
GPB:dmp
APPROVED:
OPINION COMMITTEE:
J. C. Davis, Jr.
E. M. DeGeurin
Byron Fullerton
REVIEWEDFOR THE ATTORNEYGENERAL
BY:
James N. Lti@lm