Untitled Texas Attorney General Opinion ( 1947 )

. i_, R+3 . . .‘. OFI?ICE &F TEE &JTORXEY G%~ER& Ausm. TEXAS PRICE DANIEL ATTO- GENellAL 13, 1.k ‘&larch Bon. Claud Gllmer,~ggmap- * Committee on A~roprletlons HOIl``~_._ .___,~+9tlves-~" Austin, Te n8 Oplnlon No. v-84 Re: Constitutionalityof House Bill No. 396,50th Leglsla- ture, Incldenttel Expenses Fear sir: . . Sor l4embers. Your request for en oplnlod by this depsrtment upon the above . titled aubjeot matter Is aa followa: "Encloaeb you will Slnd House Bill B.o.3% whloh has been Introducedand Is now before the.ApproprlatlonCommit- '. tee of the Hq!ye. .; . . 'Thla bill Is en appropriation blll for !lncidentalexpenses1 only for membera i# the regular session. The Com- mittee dealres to'know what In your opln- 'ioncan be included aa incidentalexpenses. .. At the present time certain expenses lncl- dent $0 the work of.each member la paid from the oontingent expense account, such as postage, stationery,and offi'iclal tele- phone calls. . "would the attached bill be oonstltu-' tional If It sets a ms+num expense allow- anpe to.each member w$th?ut regard to the nature and amount of the expense.". House Bill Ho. 3% ea subiltted to tg3Is ai follows: "H.B. Bo. 396 BY: , ABISJ: TO BE RNTITLSD '> Hon. Claud Gllmer, Page 2 -No. V-84 “AH ACT amMng an appropriationof the sua.of Three Hundred Thousand Dollars ()3OO;COO),or ao much thereof es may be necessary, out of any funds la the State Treasury not otherwiseeppro- prlated, to pay incidentalex- penses OS the membera of the ~RegularSession of the Fiftieth Legislature,such expenses not to exceed Ten Dollars ($10.00) per day per member: provldlng ?or ce$tificaties to the COUID- troller; making reoords avail- able to the public; and declaring an emergency. "BE IT RNA&D BY %T&tiISLATRRR OF TRR STATE OF TEXAS: "Section 1.' There'la hereby appr.o- prlated out of any funds in the State Treasury not otherwiseappropriated,the sum of Three Hundred Thousarrd-Dollars ($300,000),'~0$sb much thereof aa may be necesssry,to pay incidentalexpenses of the members of the Regular Session of the Fiftieth Legislature such expensesnot to exceed Ten Dollara ($10.00)per day per member, . '. "Section2.. The certlfl~ateof the Secretary of the Senate, approved by the President of $he'Senete,or the certlfl- cate of the Chief Clerk of the House of Repr,esentatlves,approved by the Speaker thereof, Shall be sufficient evidence to the Comptroller upon whloh to audit the claims for expenses of the Piembersof the Regular ?eaalon of the Fiftieth Legisle- ture. ... "Section3. Providing,however, that - a record of allmoneys appropriatedin this ,Blllshall be msde svallable for public .Ln- spectlon the same as any other publio re- cords in this State. "Section 4. The fact that the Regular Session of the Fiftieth Leglrleture of the AP-’ -- . ..‘, Hon. Claud Gllmer, Page 3'- Ro. v-84 .; : State of Texas la now la session, and pub- lic policy requires that the,appropriations made v thla Act shall be m&e immediately evallable, cpeatee an emergency and an.lm- Reratlve public necessity that the Constl- t tutlonal Rule requiring bills to be read 'on three several daya in esch Howe be sus- pended; and said Ruld la hereby suspended, c and that this Act shall take etfect end be in force Srom and after its passage, and it 1s so enacted.' This bill is an appropriationbill for lncl- . dental'expenseonly for lpembersof the Regular Session. Section 44 or Article III of the Conitltutlon is 98 followst "The Legislature shall provide by law for the cotip&nsatlonof all officers, aer' vanes, agents.and pu@llc contractors,not pr&&uJ for in this Constitution, but shall not grant extra compensation to~any officer, agent, ae?ant, or public contreotors, aster s@ch public ,servlCeahall'hsve been performed or eontract entered into, for the performance of the same; nor grant, by appropriationor otherwise,any amount of money out of the Treasury of the State, to any individual, on a claim, real or pretended, when the asme shsll nbt havibeen provld@d.forby pre-existing law; nor employ anyone in the name of the State, un- less authorleed by pre-ex&?tlng law." The neceaelty for a pre-exit&g law to authorize the appropriationof any monl68 whatsoever froipthe State Treasury is.fundamentel. .Thls eaaentla1 pre-existing law to authorl~zethe approprletlon in the present $natance consists in the'Constltutlonitself, creating t&e Legislature,and requiring it to function a8 a law-wklng brench of the Govern- ment. This by neceisery lmpllcatlonauthorizes the payment from the Treasury.ofall expenses, whether called "contln- gent? or "IncIdental"or by whatsoever name, that are neceai sbry to etibie the Legislature to perform ltficonstitutions1 duties. What perticulsr 6xpenses'comewithin the amblt of that implied power cannot be stated in words ~of finality. It undoubtedlywould lticludesuch things as poetage, statlon- ery,~pages, printlag, and the like necessltles~of the Legls- lature. This haa been the uniformly accepted constructionof 434 Hon. Claud Gilmer, Page 4 - Ro. V-84 the Conatltutlonby all dep3rtmentsconcerned since the State's exlstenoe. We under&and what is cixnmonlyknown as the ap- propriationfor "contingentexpenses" Is designed to cove] and is amply sufficientto cover all such items as above indicated. Whether or not a particular item of expense 1: Properly payable out .of such contingentappropriationla an lndlvldualinquiry 88 to each such ols.lm. Those that are properly classed aa such incidentalor contingentex- penses are paMand those that sre not tb be so classed are not psld. 'Thewtter of per diem to the members of the Leglslst~ la, of course, conolusivel determinedby the Constitutionitself (Art. III, Sec. 249. Likewise, the item of trsvel expense la conoluslvelyfixed by the same Section. Of course House Bill 396 does not contemplate supplementingmembers per diem, or travel allowanceabove that Of Section 24, or any contingent expellses,or interia expense incident to Committee work or.the like. By the ' abov,e process of ellmlnatlon,it would appear that House Bill 396 does not.contemplatethe psyment of any claim of any member, for any sum, for any expense, that is author- ized by any pre-existinglaw express ol;implied. We are, therefore, of the opinion that the Bill, If enaoted into law, would be unconstitutional.under Section 44 of Artlclt III of the Constitution. In reply to your hypotheticalquestion is to whether.or not +blil which sets a maximum expense sllow- ante to each member without regard to the-natureand s- . mount of expense, we beg to advise such a bill would be unconstitutionalas a gratuity to the ~lndlvldual members aocording as the items claimed constitutedpersonal busl- ness of the respectivemembers. Moreover, tkere would be no pre-existinglaw, nor could there be; for.such a'gratu. ity as to the personal expense Items. SUMMARY '. (1) House Bill 396 of the 50th Legls- lsture 1s invalid and If passed would not authorlee the payment of monies from the State.Treasury,for t.hewant of a pre- .exlstlnglaw therefor. .(Constltutlon,Art. III, Sec. 44). .!,.. I -. Hon. Claud Gllmer, Page 5 - no. v-84 (2) ~A11expenses necessary to the func- tlonlng of the Legislaturewy be lawfully pald,from the State Treasury under the neq- esaary lmpllcatlonof the Constitutionlt- aelf, whether such expenses be denominated "incidental!'or "contingent". (3) A bill appropriatinga wxlmum ex- pens6 ellowance to eac.hmember of the Legia- latue, without regard to the nature and the amount of the expenses,would be invalid be- cause of the absence of 'pre-existinglaw", (Constitution,Art. III, Sec. 44), and llke- wise because of a violation of the Constltu- tlon as 8 gratuity to the individual members accordlng~asthe claims were for personal buslnesa of the respective members. (Constl- tution, Art. III, Sec. 44). - . Yours very truly ATTORNEXGRliWfALOFTRXAS BY .' OS/acm/lh Approved:OplnlonCommittee 02, Chairman -