Untitled Texas Attorney General Opinion ( 1943 )

HonorableClaude A. Williams
Chairmanand ExecutiveDireotor
Texas UnemploymentCcunpewatlonCommission
Austin, Texas
Dear Sir: OpinionNo. O-5524
IiS?:WhetherSenateBill No. 266
appliesto rental space leased
by the Texae UnemploymentCm-
penaatlonComniseion.
Thla will acknowledgereoelptof~yourletterof August l.3,1943,
wherein you have requeetedthe opinionof this depar+anent upon the above
at&d matter. So that this opinionwill reflect all of the facts you
have auhaittedto UB, we quote the body of your letter in full as followai
"YourDepartMmt recentlyIssuedOpinionBo. O-927
relativeto the effect of Senate BillHo. 266, Regular
Seseionof the 48th Legislature,upon the,paymentof cur-
rent rentalsunder existingleases. We presume,in view
of the legislativepolicy ae expressedin severalrecent
appropriation bills, that SenateBill IVo.266 (to appear
aa Article 666b in Vernon’8AnnotatedCivil Statutes)
doe6 not apply to the fund6 used by this Commiseionfor
the paymentof rentals,but in order to clarifythe mat-
ter, we are requestingyour opinion.
gJnaer the atiinistratlveauthorityvested in this
Commissionby Article 5221b-9 (V.A.C.S.)the Commission
has taken leasesou a number of offices locatedat various
points in the State. Payment for theee leasesis made out
of the UnemploymentCompensationAdministration Fund
created in the State Treaeuryby Article 5221b-11(V.A.C.S.).
We direct your attentionto tie fact that the Texas Unam-
ploymentC~peneation Conmissionis not operatedon funds
derivedfrcm State taxation,but is operatedon a grant
from the Social SecurityBoard under Title III of the Social
SecurityAot, as mended, and the UnemploymentCompensation
Administration Fund conslstawholly of funds receivedfrom
the FederalGovernment. These funds are not grantedto the
HonorableClaudeA. Williame,Page 2 (O-5524)
State as ouch, but rather are grantedto +&la Ccan-
mission aa a Ccmmlsaionfor administrative use by
that body in keepingwith such rules and regulations
as may be prescribedby the Social SecurityBoard.
"Article5221b-11(V.A.C.S.)provides,among
other things, 'allmoneyw in this fund which are
receivedfrom the Federal Governmentor any Agency
thereofshall be expendedeolelyfor the purposes
and in the amountsfound necessaryby the Social
SecurityBoard for the proper and efficientadminis-
trationof this Act.' The terms of Title III under
which this money is grantedprovidethat the adminis-
trativefund shall not be grantedby the Social Sec-
urlty Board unless it is found that all moneys received
from the Board are expendedsolelyfor the purposesand
in the amountafound necessaryby the Board for the proper
and efficientadministration of such State law. In this
connectionit is pointed out that all of these contracts
must be made in accordancewith standardspromulgatedby
the Board and are also examinedand approvedby an auditor
of the Board.
"We thereforerequest your opinionas to whether or
not SenateBillHo. 266, RegularSession of the 48th Leg-
islature,is applicableto paymentof rentalby this Ccm-
mission out of funds receivedfrom the FederalOovernment."
In our opinionNo. O-5427,we advisedthe State Canptrollerof
Public Accountsthat:
"Any new lease or rental contractentered into after
the passageof Senate Bill 266 (Acts 1943, 48th Leg.,
effectiveMay 7, 1943)muet be executedIn the manner
prescribedby Sections1 and 2 of the Act. The Legisla-
ture having provideda mode for the securingof rental
space, the agenciesand deparixaentaaffectedare restrict-
ed to that mode and must conformto these requirements."
(Emphasisadded)
If the Texas UnemploymentCompensationCommissionia one of the
affectedagenciesor departmentathereinreferredto, it would follow that
the provisionsof Senate Bill Ho. 266 apply to rental space neededby it.
If not, the Commissionmay continueto follow the procedureit has followed
in the past in securingrental space.
. .
HonorableClaudeA. Williams,Page 3 (o-5524)
Any intelligentinveetigationof the powers and authorityof the
Texas UncmgloymentCompensationCommissionmust includean examinationof
certalufederaletatuteaa8 well ae etate etatutse. In this particular
phaee of etats activity-unemplopent inauranoe-federalsn8 state legis-
lationare so interwovenaa to oonrrtltutea joint legielativeundertaking
by the FederalCon@'eeeand the Texae Legielature.
Your inquiryinvolvesadminletrative details,(I,matter in the
joint legislativeendeavorin which State and Federal legislationIs most
particularlyIntermingledand in which the cooperationbetween the two
governmentsis most pronounced. The extentof this cooperationwill be-
ccaueapparentfrom the statutesand acts which will be hereinafterquoted
and referredto.
The federallegislationon the subjectwill be found under Title
42, SubchapterIII, United States Code, under the title "Grantsto States
for UnemploymentCmpensatiou Administration."
Section 501, under this title and subchapter,provideafor a
continuingappropriation of certain funds for the purposeof asslatIngthe
states in the administration of their unemploymentcompensationlaws.
Section 502 containsthe followingprovisions:
"(a) The (FederalSocial Security)Board shall from
tfme to time certifyto the Secretaryof the Treasury
for paymentto each State which has an unemploymentcorn-
penaatlonlaw approvedby the Board under sections1610-
1611 of Title 26, such amountaae the Board determines
to be necessaryfor the properand efficientadminiEtZ%-
tion of such law durm the fiscal year for which such
payment is to be made. (Emphasisadded).
Section 503 of this title containsthe followingprovisions:
"(a) The Board shall make no certificationfor
paymentto any State unleee it finds that the law of
such State2 approvedby the Board under sections16io-
1611 of Title 26, Includesprovisionfor --
"(8) EffeotlveJuly 1, 1941, the expenditureof
allmoneye receivedpursuantto section5M of this
title solelyfor the purposesand in the amountsfound
necessaryby the Board for the prOperand efficientad-
ministrationof such State law." (Emphasisadded)
HonorableClaudeA. Williams,Page 4 (O-5524)
The remainingprovisionsin this sectionprovidethat in the
event the State agenog chargedwith the administrationof the State Un-
employmentCompensationLaw fails to carry out the requirementsof the
Sooial SeourityBoard, the Board shall make no oertificationfor payment
to the reoaloitrantState.
The aDulloablearovlelone of our State law are found in the
UnemploymentC&peneation-Act,Article 5221b,Vernon'sAnnotated01~11
Statutes.
Section 9 of Article 52211,containsthe followingprovisione:
“(a) Duties and Powers of Ccemnisaion:It ahall be
the duty of the Ccvmuission,toadministerthis Act; and
it shall have power and authorityto adopt, amend9 or
rescindsuch rulea aDd regulations,to employ such per-
sane, make such expenditures,requiresuch reports,make
such investigations, and take such other action as it
deems neoeasaryor suitableto that end. D 0 .
"(I) State-FederalCooperationr In the adminfstra-
tian_of
make euoh reports,in such form and containingsuch in-
formationae the Social SecurityBoard may from time to
time find necessaryto aBeure the correotnessand verifi-
-
cation of such reports;and shall ccm witi the regula-
Seotion llp Article 522113(Sectionl3 in originalAct) provides
the following:
"(a) SpecialFuods There is hereby erea,ted in the
State Treasurya apeoialfund to be known aa the Unemploy-
ment CompensationAdministration Fund. All moneys which
are depositedor paid into this fund are hereby appropriated
and made availableto the Cammissionand ahall be continu-
ously availableto the Ccmmissfonfor expenditurein
HonorableClaudeA. Williams, Page 5 (O-5524)
accordancewith the provisionsof this Act, and shall
not lapse at any time or be transferredto any other
ma. All moneys in this fund whloh are receivedfrom
the FederalGovernmentor any sgenoy thereof ehall be
expended~0ls.l~ for the purpoeesand in the munts
found neoessaryby the Sooial SecurityBoard for the
proper and efficientadministration of this Act. This
fund shall consistof all moneys appropriatedby this
State; all moneys receivedfrom the United States of
America,or any agency thereof,includingthe Social
SecurityBoard; . . . .", etc. (Emphasisadded)
The State legislation, above quotedand referredto, revealsan
unmistakableintenton the part of the Legislatureto requirethe Texas
UnemploymentCompensationCcmmissionto cooperate to the fullestpossible
extantwith the FederalSocialSecurityBoard in matters concernedwith
the administrationof the Texas UnemploymentCompensation Act.
The reasonwhy the Texas Legislaturehas requiredsuch extensive
cooperationwith the FederalSocial SecurityBoard becomesapparentwhen
we realizethat practicallyall funds used in the administrationof the Un-
employmentCcrmpensaticnAct are furnishedby the FederalGcvercmentand
that none are furnishedby the State. Under the Federal enacimenta,which
are quotedand referredto above, the FederalGovernmentwill continueto
furnishthese funds only 80 long as the Texas Commissioncomplieswith the
rules and regulationsof the FederalSocial SecurityBoard with regard to
the expenditureof the moneys so furnished.
Under Section 503, subsection(a), Title 42, U.S.C.A.,the Social
SecurityBoard Is prohibitedfrom making certification for payment to any
State unless such State has enacted legislation
which providesfor the ex-
penditureof funds furnishedunder Section 502 of that title "solelyfor the
In ccmpllanoewith this requirement,the Texas Legislaturehas
providedin subsection(a) of Section 11, Article 5221b,Vernon'sAnnotated
Civil Statutes, that: "Allmoneys in this (Administration) fund which are
receivedfrom the FederalGovernmentor any agency thereofahali be expended
solely for the purposesand in the amountsfound necessaryby the Social
SecurityBoard for the prcuer and efficientadministration of this Act."
~Rnphasieadded)
That these provisionsof the Federal and State laws result in
placing in the FederalSocial SecurityBoard in Wsehington,absolutecontrol
over the securingof rental space by the Texas UnemploymentCompensation
Page 6 (O-5524)
HonorableClaudeA. Wfllirnna,
Commission,was illustratedin the reoent case of StarlingRealty Corpora-
tion v. State, 20 N.Y.S. (26) 270, 174 App. Div. 375, affirmed1941, 36
N.E. (26) 201, 286 N.Y. 272, re-ar ent and motion denied, 1942, 37 N.E.
(2d) ~8, 286 N.Y. 696, 26 N.Y.S. F26) 47, 261 A``.DIV.363, which was af-
finned, 1941.
In the Starlingcase, the Divisionof Placementand Unsmployment
Insuranceof New York, which correspondsto our Unsmplopsnt Compensation
Comieslon, had rented certafnpremisesfram the StarlingRealty Corpora-
tion, and, thereafter,the Divisionof Placementand UnemploymentInsurance,
upon a determinationof the FederalSocial SeourftyBoard that the space was
no longerneeded and that thereforeno furtherfunds would be providedfor
rentalon those premises,oancelledits rental agreementor lease. This
action by the Divisionwas made pursuantto a clause In the leasingcontract
that the liabilityof the State was contingentupon the availabilityof
moneys to pay such rental.
The New York Court of Claims in denyingthe landlord'sclaim for
rental,points out that:
"The power of the (FederalSocial Security)Board to
providenecessarymoneys for increasingthe number of
necessaryofficesor enlargingalreadyexistingoffices
would seem to be clear and it woc3.dseem equallyclear that
it could refuse to providemoneys for such officesas it
might decideunnecessaryin the administration of the law."
The only logicalconclusionto be deducedfrom this holding~and
the quotedprovisionsof the Federal and State lam is that absolute~dlscre-
tion over the amount of rental space needed by the Texas UnemploymentCompen-
sationCmmission and the amount of money ,tohe spent for rentalhas been
placed under our UnemploymentCcaupensationAat in the FederalSocial Security
Board in Washington.
SenateBIU. NO. 266 (Chap. 258, Acts 1943, M3tb Leg.) on the o"ther
hand placesalmost an equal amovmt of dfseretionover the procurementof
rental spaoe by all State agenciessod departmentsin the Texas Board of Con-
trol. we quote the first two sectionsof SenateBill No. 266, as folicws:
"SectionI. Hereafterall departientsand agencies
of the State Government,when rentalspace is needed for
carryingon the essentialfunctionsof such agenciesor
deparimentiof the State Government,shall submit to tie
State Board of Controla request therefor,giving tJ'&e
type, kind, and size of 'building
meded, togetherwith
any otier necessarydescription,end stat%ngtie purpose
for which it will be used and the need tlterefor.
HonorableClaude A. Williama,Page 7 (O-5524)
"Section2. The State Board of Control,uuou
receiptof such request,and If the money has been
made availableto pay the rental thereon,and If in
the discretiouof the Board such mace is needed,
shall forthwithadvertisein a uewsuauer.which has
been regularly publishedand cfm&&d in the city,
or town,where auoh rental space is eou&t, for bids
on such rental spaoe,for the uses indicatedand for
a period of not to exoeed two years. After euah bids
have been receivedby the State Board of Controlat
its principaloffice in Austin, Texas, and publioly
opened,the award for such rental contractwill be
made to the lowestand best bidder,and upon such
other terms as may be agreed upon. The terms of the
contract,togetherwith the notice of the award of
the State Board of Controlwillbe submittedto the
AttorneyGeneralof Texas,who will oause to be pre-
pared and executedin accordancewith the tenus of
the agreement,such oontractin quadruplicate; one
of which will be kept by each party thereto,one by
the State Board of Control,and one by the Attorney
Generalof Texas. The partiesto such contractwill
be the departientor agency of the governmentusing
the space as lesseeand the party rentingthe spaoe
88 lessor."
Insofaras the Texas UnemploymentCcnapensation Comnlssionis
concerned,the discretionwhich Senate Bill No. 266 plaoes inthe Board
of Controlwould be in direct conflictwith the discretion,which we have
alreadyseen, has been placed in the BederalSocial SecurityBoard. Since
practicallyall funds used in the administration of the UnemploymentCon-
pensationAct are furnishedby the FederalGovernmentand its agencies,and
none is furnishedby the State, the provisionsof Senate Bill No. 266, if
held applicableto the Texas UnemploymentCaapensationCommission,would
create an unbridgeableconflict. Quite obviously,the discretionover the
amount of space and the price to be paid for it oannot rest both in the Board
of Controland in the Social SecurityBoard. One or the othermust have the
final word.
A simple answer to this stalenuate,
may be found in the second
clauseof Section 2 of SenateBill No. 266, whioh providesthat the Board
of Control'saotion is contingentupon the availabilityof moneys to pay
rentalupon the requiredspace. As we have seen, the only moneys available
to the Texas UnemploymentCcaapensationCommlsslonfor rental apace are those
furnishedfor the paymentof rentalupon space approvedby the Social Security
Board. And it might be held that since no moneys are available,the Boar3 of
Controlhas no jurisdiction.
HonorableClaude A. Williams,Page 8 (O-5524)
However,we prefernot to reat our opinionsolelyupon this
tenuoustechnicality, but ratherupon acceptedlegal principleswhich
we believepoint to a proper solutionof the apparentconflict.
SenateBill No, 266 ooutainsno repeal of any of the provisious
of the Texas UnemploymentCcenpensationActs nor for thatnatter of my other
previousleglalativeenaotmente. It containsneithera specificnor a gsn-
era1 repeal of prior lsgislation.In order to reach the conclusionthat
this Bill, in fact, repealsany portionof the UnemploymentCanpensatlon
Act, we would be requiredto rely upon a repealby implication.As pointed
out in Texas Jurisprudence,repealsby implicationare not favored.
"Accordingto numerouspronouncsments of the Texas
courts,the repeal of statutesby implicationis never
favoredor presumed, The two acts will persistunless
the conflictingprovisionsare so antagonisticand re-
pu@mnt that both cannot stand. Where there is no express
repeal,the presumptionis that in emoting a new law the
Legislatureintendedthe old statuteto remain in operation."
39 Tex. Jur. 140, and cases cited iu tie footnotes.
Under the rules above stated,we must presumethat in enacting
Senate Bill No. 266 and in makiug uo expressrepeal of existinglegisla-
tion, the Legislatureintendedthat the couflietingprovisionsof the Uh-
employmentCompensationAct remain in effect. Texas Jurisprudenoefurther
points out that;
“If by any reasonableconstructiontwo sets or
statutoryprovisionscan be reconciledand so oon-
strued that both may s+tsnd,
one willnotbe held to
repeal the other. Especiallywhere tie older law is
particularand is expressedin negativeterms,and
the later statute is general,a construotionwill be
soughtwhich harmonizesthem and leavesboth in con-
currentoperation." 39 Tao Jur. 141-2,and oases
cited in the footnotes.
We direct your attentionalso to the rule that a generalact does
not repeala specialor particularlaw. The entwtmentof a generallaw does
not ordinarilyopera,te as a repeal of a particularor speciallaw, by impli-
cation,althoughboth relate to the same sub$eotmatter. On *he contrary,
both statutesare permittedto stand, and the general law is applicableto
all cases not embracedby the speclfiosot. In other words, the partioular
act Is eonstruedas constitutingan exceptionto the general law. This is
said to be a settledrule of constructionbased upon tie presumptionthat a
s``~ffi(:s&tu,t;eeyiden~*st&e jxrteamthm c.2+&h IngS.slas.t;Ls"e
more e?sarJ$ctb.Rn
a genera2one, ma ~e;rCfme ahcd.aeoE,t~'~3i., jg 'Fez.@T&r.i4945c; Tc7msena
y. Terrell,118 Tern.463, 16 S,W. (2&) ~063; Ellis v. Batits,26 Tex. 703;
Cole v. State, 106 Tex. 472, 170 S,W. ;la36,dimfsehg errcr 1.63S.W. 353.
.
HonorableclaudeA. Willimm, Page 9 (O-5524)
V. Bette, 26 Tex. 703; Cole Y. State, 106 Tex. 472, 170 S.W. 1036,
dismlsalngerror 163 S.W. 353.
Under them rulee of statutoryoonetruation,the Texae Ummploy-
ment CompensationAot will be held oontsollingin mattererelatingto the
eeourlngof rentalspaoe by the UnemploymentCmupeneatlonCcem~Ieelon, while
senate BIU HO. 266 IS oontrolling in mattere regardingrental spaoe needed
by other &epar+mentaor agenclea,which are not controlledby specialor
particularstatutes.
You are thereforeadvised,and it Is the opinionof this depart-
ment, that the provisionsof Senate Billlo. 266 40 not apply to the Texas
UnemploymentCmpensation Ccamission.
Trustingthat ve have fully answeredyour inquiryand that you
will call upon ue if we oan be of furtherservice,we are
Yours very truly
By /a/ Peter Maniscalco
Peter Manlscalco
Assistant
Pwff
APPROVKDAIJG30, 1943
/e/Gerald 0. Mann
Al?lS~QEliEBALOFTEXAS
APPROVED
OPIBlIOly
COMMIm
BY /sbm
Chalnmn