Untitled Texas Attorney General Opinion ( 1944 )

Honorable Geo. H. Sheppard Comptroller of Public Accounts Austin, Texas Dear Sirs Opinioti’NciiO-61 3. Rss Interpretat 4 on of Sections s'and 6 of House Bill No. js 4cts.of the.,49th LegTslature, P. s., as affected by Arti- ,cle_III, Section 49a of the 'Texaa.Congtltution. Your opinion request of February 6, 1945, reads aa iollowrt eSeotions 5 and 6 of House Bill No. 3 of the present Yesston of the Legislature, read as follonrsr "@eC. 5. Amend Section 2 of ~Arti- de 13 of EIoiZi7Ril NO. 176, Acts of the Re ular Session of the forty-eighth Legislature, 19 & 3, so as to hereafter read as follows8 "'A&icle 130 Anvronriation and --. Allocation. "'Section 2. Allooation. It is hereby specifically provided that out of the money a proprlated fm the school year of 1944-19k th e aum of Nine MillionOne Hundred Ninety-one ThousandDol1ar.s (~9;19l,OOQ.O0) for High School Tuition: ~Se.verty-bne Thousand Three Hundred and SeVm6iR;Dollars '(#71,370.00) for the administration of this Act as provided,, herein;, Twenty-one Thousand and Two Hundred Dollars (#21,200.00) for the expenses of the Legislative Committee, the salary of the Legls- . . Hon. Geo. H. Sheppard page 2 0-6.193 tive Accountant, and for such other and necessary expenses incident to the duties, of the Legislative Accountant. Such Legislative Accountant shall be paid a salary of not more than Four Thousand and Two Hundred Dollars ((&,200000) per year ,out of the sum hereby allocated. Any unexpended balance under either of the above allocations-at the end of either year of the biennium mau be transferred by order of the,State Superintendent of ~ytibllc Instruction and the approval of the Legislative Aocountant to any allocation herein created and set up.' "Sec., 6. In addition and supplementary to the funds appropriated by the provisions of House Bill. No. 176 Acts of the Regular Sessi'on of the Forty-eighth kqislattire, there ~ishmr~ approi priated out of the General Revenue Fund of the State of Texas, not ,otherwise appropriated, ,the sum of One Million Five Hundred and Seventy-five Thousand and highty-two Dollars ($1,575,082.00), orso much thereof as may be'necessary for the biennium end- ing August 31, P&5, to be allocated and ,expended under the provisions of House gill No. 176,.,Acts of the Regular Session of the Forty-eighth Legis- lature,' and of this Act.' ^ aThe Comptrollerss certificate certify- ing as to the funds available for the payment of the appropriation reads as ~followsg "'I, Gee. 11. Sheppard, State co*- t,rollor-of ublic Accounts do hereby cer- tify that tg e sum of One Million Five Hundred and Severty Five Thousand..and Eighty TWO Dollars,()l 575.082.OO),,appro- priated fnthe herein kouse flill~.*umber 3. PS within the amount estimated to be available within the affected funds. v "The ~unexpended balance of the above named allocations at the end of the 1943*!1944 fiscal year amounted to $1,184,655, Hon. Geo. H. Sheppard Page 3 o-6193 "The question before us, at the: time we certified to'this bill and it also confronts us now* is whether the above mentioned onexpended balance subject to use for ,the purposes of this bill under prior appropriations? I_ 'Prior to the amendments set forth in your letter, Section 2 of Article 13, House‘Rill No. 176, Acts of the 48th -Legislature, R~. S., Ch. 373, p.- 669, reads as follows: "Sec. 2. Allocation, It is hereby specifically provided that out of the money appropriated for each school year of the biennium the sum of Five Million Three Hundred Sevety- eight Thousand, Four Hundred and Twenty Dollars ($5,378,42@) is hereby set aside for Salary Aid; Nine Hundred and Twenty Thousand Dollars ~~~~O~~~~~e~~n~"~~v~~~~o~ Tuition' Three Miilicn ollars (471,370) for the administration of.thls&t as proadded herein; Twenty-one Thousand and Two Hundred Dollars (#21,200) for the expenses of the Legislative Com- mittee, the salary 6f the Legislative Accountant, and for such other and necessary expenses incident &o the duties of the .egislative Accountant. Such legislative Accountant shall be paid a salary I of not more'than Four Thousand and Two Hundred-~ Dollars ($4e20Q0GO) per year out of.the. sum hereby allocated* Any unexpended balance under either of the above allocations at the'end ,of the first year of the biennium shall be transferred by order of the State Sppenintendent of Public In- struction and the ap;Groval of the Legislative Acoountant to any allocation herein created and set up." Section 49a of Article ,111 of the Texas Consti- tutioq provides, inter alia, thata. . 1. "From and after January 1, 194.5, no bill con- taining an appropriation shall be considered as passed or be sent to the Governor for considera- - _. . Hon. Qeo. H. Sheppard --Page 4 o-6193 _, , tfon until and unless the Comptroller of Public Accounts endorses hfs.certificate thereon show- $ng~ that the amount appropriated is within the amount estimated to be available in the affected funds." . Plainly Section 6 of EIouse Bill No. 3 comes within this provision, and you have made a certification with respect to the amount therein appropriated. A more difficult questfon is whether the provision in Section 5 with respeot to the transfer of unexpended balances is also an approprla- tlon made after January 1, 1945, and hence fs also within the above quoted section of the Constitutfon. It is our opinion that this provision is not such an appropriation and that no certfficate need be executed by the Comptroller with respect to Section 5. Nefther in terms nor in effect does Section 5 of House Bill 30. 3 contain an appropriation. On the oontraryp this Section merely provfdes for the allocation,.,,of appropriations elsewhere made for the school year of 1944-4s. One of the appro- priations which is subject to allocation by Sectfoq's is con- tained in Section 6, and, as we have seen, this appropriation must be and has been accompanied by a certificate from the Comptroller, The other appropriation which is allocated by Section,5 is contained in Section 1 of Article I.3 of House Bill No. 176, and since such approprPatlon was made prior to danuary 1, 1945# ft was not and did notneed to be accompanied by such a certfficate. The provision at the end of Section 5 relative to the transfer of unexpended balances is merely analternative method of allocation. This provision is no way takes additional funds which have already been taken out of the T.reasury ,by Section 6.of House Bfll No. 3 and by Section 1 of ArtfoPe~ 13 of Rouse mill No. 176 to be expended for purposes other than those for which they were inftially encumbered. Consequently, you are respectful1 advised that the provision in Seotion 5 of House U1 11 No. 3 with respect to thetransfer of unexpended balanosa is not embraced by Section 49a of Artfc'le III of the Texas Constitution, and that such provfsfon calls forno certiffoate from you. Trusting that the foregoing fully answers your inqufry9 we are RDMfBT/ am Yours very truly hPFROVF$ FEB 26 1945 ATTORR%YGEXKRAL OF TMAS CAJIIp$,C.ASHLEY FIW' ,.~@S~3%W R. Dean Poorhead hPPROV~.OPINION COMMITTEB-% BWB ,,. A.gglstant