Untitled Texas Attorney General Opinion ( 1959 )

THEAITORNEWGENERAL
OF TEXAS
WILL WILSON
AlTGRNEy GENERAL
,March'13,1959
Honorable W. S Heatly, Chairman
House Appropriations Committee
Honorable W. S. Fly, Chairman
Senate Finance Committee
Austin, Texas
Opinion No. W-573
Re: Whether a general appro-
priations act may appro-
priate or transfer moneys
from "Special Purpose" Funds
so dedicated by the Constitu-
tion or by statutes, to other
state departments and to the
General Revenue Fund in order
to finance auxiliary services
directly benefiting such
L"Special Purposes".
Dear Messrs. Heatly and Fly:
Your request for an opinion reads .in part as follows:
"Briefly, that question is whether a
general appropriations act may appropriate
or transfer moneys from 'Special Purpose'
Funds so dedicated by the Constitution or
by statutes, to other state departments and
to the General Revenue Fund in order to fi-
nance auxiliary services directly benefiting
such 'Special Purposes'.
"Our question can be made more explicit
by citing specific examples.
"1. In Article III at page 5 of H.B. ~,,
216 and S.B. 42 referred.$boour Committees,
under item 16 there are suggested certain '
appropriations from special funds therein
Honorable W. S. Heatly and Honorable W. S. Fly, page 2. (WW-573)
specified, to finance legal counsel and serv-
ices by the Attorney General's Office. As
you know, these suggested appropriations
are fully supported by administrative agree-
ments. However, are the appropriations
proposed under item 16 fully valid under
the pertinent statutes; or do they re-
present, in effect, an attempt to amend
general statutes by an appropriations act
provision? In this connection, Attorney
General's Opinion No. V-1304, dated Octo-
ber 8, 1951, may be pertinent.
"2. In Article III at page 65 of the
identical bills before our Committees,
item 23 proposes to transfer $150,000 a
year from the State Highway Fund to the
General Revenue Fund. The stated purpose
of the transfer is to reimburse the Gener-
al Revenue Fund for services rendered the
Highway Department and the state highway
program by the Board of Control through
Its purchasing procedures; by the Comptrol-
ler of Public Accounts in its accounting
for receipts and in related services to the
Highway Fund and program; by the Treasurer
in its custody of highway funds, Its collec-
tion and crediting of depository interest
due the Highway Fund; by the Attorney Gener-
al's Office in its legal services, other than
on right-of-way acquisition, rendered to the
Highway Department and its program.
"Is the contemplated transfer consonant
with Article VIII, Section 7, of the Consti-
tution which dedicates motor fuel tax receipts
to the construction and maintenance of high-
ways? In this connection, Attorney General's
Opinion addressed to Dr. H. Y. Benedict, then
president of the University of Texas, in Rook
374 at page 727, may be pertinent.
“3. Although statutory rather than con-
stitutional provisions appear to be Involved,
the pending bill proposes 'service transfers'
for reasons identical to those in example 2
above, in the case of certain professional
and occupational licensing funds. Such in-
stances appear In the bill, however; only
when the applicable statutes make no provision
for the transfer of stipulated amounts or bal-
Honorable W.S.Heatly & Honorable W.S.Fly, page 3. (WI?-573)
antes, from such special funds to the General
Revenue Fund.
'Instances of such proposed 'service
transfers' appear in Article III at page
26, item 5, for the Game and Fish Commis-
sion; page 80, item 9, for the Board of
Registration of Professional Engineers;
page 102, item 8, for the Board of Dental
Examiners; page 98, Item a for the Board
of Barber Examiners; page 99, item 7 for
the Board of Basic Science Examiners;
page 105, item 6, Board of Medical Examin-
ers.
"Should you find affirmatively on the
basic question, any suggestion you might
make for improving the language of such
provisions will be appreciated by our Com-
mittee."
Item 16 of the appropriation to the Attorney Gen-
eral's Office creates a special,fund known as the Attorney
General's operating fund into which the Comptroller is au-
thorized to transfer the funds appropriated by Item 16,
namely the Liquor Act Enforcement Fund, the Medical Regis-
tration Fund, the Special Game and Fish Fund, the Veterans
Land Board special fund, the Insurance Agents License Fund
No. 85, and the Department of Corrections fee account, the
particular language being as follows:
"Cut of Attorney General's Operating Fund:
"The Comptroller is hereby authorized
and directed to transfer the funds herein-
after appropriated to the Attorney General's
Office into a special fund in the State
Treasury to be known as the Attorney Gener-
al's Operating Fund, and all transfers, de-
posits~and balances in the Attorney General's
Operating Fund are hereby appropriated for
the necessary salaries, wages, traveling and
operating expenses, including professional
services involved in performing the legal re-
sponslbilities of the Attorney General's Of-
flee. No salaries paid from this fund shall _:.';
exceed those authorized for similar wor~kin
the Attorney General's Office. Where there
is not a similar position in the Attorney Gen-
eral's Office, then it shall be within the dis-
cretion of the Attorney General as to the sal-
.
Honorable W.S.Heatly & Honorable W.S.Fly, page 4, (W-573)
ary that shall be paid the individual who
performs such duties, not to exceed the sal-
aries in Item 3 (Class IV Attorneys]."
Item 23 of the appropriation to the Texas Highway Be-
partment makes an appropriation as follows:
"In addition~:tothe appropriations
and purposes set forth above, there is also
appropriated out of the State Highway Fund
for each year of the biennium beginning Sep-
tember 1, 1959, sufficient moneys to compen-
sate the General Revenue Fund for services
rendered to the Highway Department by other
administrative departments financed out of
that fund and the Comptroller shall transfer
to the General Revenue Fund the following
fixed amounts."
Item 9 of the appropriation to the Board for Regis-
tration for Professional Engineers provides as follows:
"For the purpose of reimbursing the
General Revenue Fund for services rendered
by Administrative and service departments
financed from that fund, there Is also ap-
propriated and the Comptroller shall transfer
from the Professional Engineers' Fund (N0.56)
to the General Revenue Fund during each year
of the biennium beginning September 1, 1959,
the sum of . . .'
Item 8 of the appropriation to the Board of Barber
Examiners provides as follows:
"For the purpose of reimbursing the
Qeneral Revenue Fund for services rendered
by administrative and service departments
financed from that fund, there is appro-
priated and the Comptroller shall transfer
from the Barber Examiners Fund (No. 40) to
the General Revenue Fund during each year
of the biennium beginning September 1, 1959,
the sum of . . ."
Other service transfers contain similar language.
Therefore, your request is properly divided into two
categories:
Item 16 of the appropriation to the Attorney
General %eating the "Attorney General's operating fund'.
b. The "service transfers".
Honorable W. S. Heatly & Honorable W.S.Fly, page 5 (WW-573)
.
Item 16 of the appropriation to the Attorney Gen-
eral. Az'regards to Item 16 of the appropriation to the
Attorney General's Office, It Is our opinion that the validity
of such appropriation is governed by the principles of law
announced In Attorney General's Opinions WW-544 (1959) and
m-557 (1959)* In WW-544 it is stated that the Legislature
may provide the purposes for which a statutory special fund
may be expended and that It is the duty of the Comptroller
to keep special statutory funds in a separate account from all
other funds to be expended only for those purposes authorized
by the Legislature. In Attorney General's Opinion WW-557, It
was held that the moneys appropriated from a special statutory
fund, to-wit: "The Medical Registration Fund may be expended
for any travel by any employee of the office of the Attorney
General when traveling on official business in the enforcement
of the Medical Practice Act."
The Legislature cannot by rider in the appropriation
bill amend a,general law. Attorney General's Opinion V-1304
(1951). Therefore, the Legislature cannot transfer special
funds to the General Revenue Fund by an appropriation bill with- .!; : .:
out first amending the general law creating the speolal fund.
The Legislature does have the power, however, to transfer
statutory special funds to the General Revenue Fund by a gen-
eral law without violating the provision of Section 7 of
Article VIII of the Constitution of Texas, relating to the
diversion of special funds. Gulf Insurance Company v. James,
143 Tex. 424, 18 S.W.2d 966 (1945); Attorney General's Opin-
ion WW-544 (1959 .
Item 16 to the appropriations to the Attorney General
appropriates money for the purposes authorized by the general
law and it keeps such special funds in a separate account to be
expended only for the purposes authorized by the Legislature
by general law. Since the appropriation is neither contrary
to any constitutional provision nor to the general law, it is
our opinion that such item of the appropriation bill is con-
stitutional.
b. 'Service transfers". As noted above, the Legisla-
ture cannot transfer moneys set aside by general law for a
specific statutory purpose to the general fund by the general
appropriation bill without first amending the general law.
Transfer of constitutional funds could only be accom-
plished by a constitutional amendment In view of the provi-
sions of Section 7 of Article VIII of the Constitution of Texas.
Carroll v. Williams, 109 Tex. 255, 202 S.W. 504 (1918).
Honorable W. S. Heatly & Honorable W. S. Fly, page 6. (WW-$%lj
It is obvious from the wording of the items designated
in your request as "service transfers that the Legislature is
not attempting to divert the purpose for which the funds were
created to the general revenue fund. On the contrary, It is
attempting to cause the expenses incurred by various agencies
of the executive department of government in the enforcement
of the Acts creating the special funds, to be paid from the
funds created for the purpose of carrying out such expenses
rather than the general revenue fund. The wording of these
items, however, makes a lump sum transfer which will result
in the special funds being expended for general purposes rather
than being expended for the specific purpose for which they
were created. Therefore, such items as worded would be in-
valid since they are contrary to the general law.
In response to the last paragraph of your request
relative to suggestions this office might make, you are
advised that the Legislature may carry out its intended pur-
pose in one of two alternative methods.
First, the Legislature can amend the general law creat-
ing each special fund so as to authorize a transfer of desig-
nated amounts to the general fund, as determined by the Legis-
lature.
Second, the Legislature may provide in the General
Appropriation Bill a method for the reimbursement to the Cen-
era1 Revenue Fund by establishing the machinery for a factual
determination of the value of the services rendered by admin-
istrative and service departments, or the actual cost of the ~' ,'
services rendered. This may be accomplished by designating
the Legislative Budget Board or the Governor or some other
agency designated by the Legislature, and, after a factual
determination, the authority to execute the proper certifica-
tion of the value of the services rendered. The Comptroller
should then be given authority to transfer from the Special
Fund to the General Revenue Fund upon such a certificate.
SUMMARY
The Legislature cannot divert the pur-
pose for which funds are created by
items or riders in the General Appro-
priation Bill without first amending
the general law creating the special
fund. The Legislature may provide
in the General Appropriation Bill for
the reimbursement to the General
Revenue Fund for services rendered by
Honorable W. S. Heatly & Honorable W.S; Fly, page 7. (WW-573)
the administrative and service depart-
ments financed from the General Revenue
Fund,provided that a method is prescribed
therein for making a factu~l',determ~nation
of the value,of the services rendered by
administrative a,nd service departments,
or the actual cost of the services rendered
by the administrative and service depart-
ments financed from the General Revenue
Fund.
Yours very truly,
WILL WILSON
Attorney General of Texas
JR:rm:mfh:zt Assistant
APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn, Chairman
Jack Ucodman
Riley Eugene Fletcher
Robert Lewis
REVIEWED FOR THE ATTORNEY QENEFlAL
BY: W. V. Geppert