Untitled Texas Attorney General Opinion ( 1939 )

NO. 3082
opinion construing “Limitation Of Payments”
clause of Senate Bill 427. Regular Session,
46th Legislature, and holding
1. Clause is constitutional.
2; Board’s authority relates only to surpluses
in funds dedicated or devoted to a depart-
ment’s use and benefit, but not appropriated
to that department elsewhere than in the
“Limitation of Payments” clause.
3. Where authority of department to employ
additional salaried workers is denied,
Board has not the power to authorize such
employment.
4. Board has no authority to authorize use of
surplus, or any portion of it, for “travel-
ling expense ;”
5. Board has authority to.deal only with
“actual” surpluses, not with “estimated”
surpluses.
OFFICE OF THE ATTORNEYGENERAL
August 30, 1939
Hon. W. Lee O’Daniel
Governor of Texas
Austin, Texas
Dear Sir: Opinion No. O-1321
Re: Gsneral A propriation Bill--
Oonstitut Ponality of and auth-
ority, conferred upon the
*Limitation or Payments”
Board.
We have for acknowledgment our letter of August 23rd,
wherein you request the opinion of th f s Department upon the fol-
lowing questions:
“1. Did the Legislature have the constituional
authority to confer upon the Board which was created
under the paragraph headed VLimitstion of Payments’ Of
Section 2 of Senate Bill No. 427, of the Regular Session
of the Forty-sixth Legislature, such powers as are given
to it In the Bill?
“2. If question No. 1 is answered in the affirmative,
then to what fund does the authority of the Board relate7
“3. If question No. 1 is answered in the afflrmativs,
may the Board, in inatanoes where the speirial rider fOllOw-
ing a particular departmental appropriation, which provides
that ‘No salaries except extra labor, shall be paid except
Hon. W. Lee G’Daniel, Page 2
those herein specifically itemized,’ authorize
the employment of additional salaried individuals
by department in the event the availability of
funds and the necessity for using the same for
such purpose is~properly demonstrated to the
Board by the department head.
“4. May the Board, in any event, allow ad-
ditional amounts for ‘traveling expenses’ over
and above the amounts specifically itemized for
such purposes?
“5. If question No. 1 is answered in the.
affirmative, then please advise whether the Board
is authorized to deal with an estimated surplus,
or must there be on hand in the special fund
an actual surplus before the Board is authorized
to allow additional expenditures?”
In reply to your first question, we beg to advise
that in our opinion the provision of the General Aupropria-
tion Bill cresting the “Limitation of Payments” Board, com-
posed of the Governor, the Treasurer, and the Attorney Ganeral,
is a valid exercise of the legislative authority, under
the Constitution of the State of Texas. The “Limitation of
Payments” clause is, in effect, an appropriation of certain
funds for expenditure for stated purposes by the particular
department of the State government, upon the happening of
a certain condition, that is, that it shall become neces-
sary to expend such funds in order that the functions.of the
particular department may be performed adequately. The
appropriation is made by the Legislature, and is complete
and the function of the Board is not to appropriate moneys,
but to determine whether the conditions authorizina emendi-
;u&of moneys appropriated by the Legislature actually
. The Board acts in the capacity of a fact-finding
agenoy, to determine whether there is actually a sur lus
available for expenditure, and to determine whether Pt is
necessary, in order that the functions of the particular
deDartment may be performed adeauately. that such surplus
or-a portion thereof be expended. -.
The validity of such a provision in an appropria-
tion bill was recognized in the case of Terre11 vs. Sparks,
‘135 S.W. 519, wherein the Supreme Court of this State held
sufficiently specific as an appropriation, an appropriation
bill providing a sum of money for the use of the Attorney
General for certain purposes, to be expended by him, by and
with the approval of the Governor.
See also State ex rel. Normal Schools vs. Zimmer-
man, 183 Wis. 132, 197 N.W. 823. Cases apparently contra
will be found in 91 A.L.R. note at page 1512, but in most
of the cases there cited, the constitutional requirements
are different from those in Texas. We find nothing in our
Constitution expressly or impliedly prohibiting the Legisla-
ture from making an appropriation of moneys to be expended
upon the happening of a condition subsequent, and from
setting up a fact-finding agency to determine whether or not
such aondition subsequent has actually occurred, so as to
authorize the expenditure of suoh appropriated sums.
Hon. W. Lee O’Daniel, Page 3
Your second question may be restated as follows:
“To what type of surplus fund does the author-
ity of the ‘Limitation of Payments’ Bosrd relate?”
The Limitation of Payments clause, 9s it appears
in the General Rider to the General Appropriation Bill of
the 46th Legislature, reads as follows:
wLimitation of Payments. Except as otherwise
provided, whenever, by virtue of the provisions of
this Act, items are to be paid out of fees, receipts,
special funds or out of other funds available for
use by a department, it is the intention of the
Legislature to limit expenditures out of said fees,
receipts, special funds or other available funds
to the purposes and in the amounts itemized herein,
and it is so provided. If, however, the amount
of the fees, receipts, special or other available
funds herein referred to sre more than sufficient
to pey the items herein designated to be paid
therefrom, the department to which the said fees,
receipts, special funds or other available funds
are appropriated may, if necessary to adequately
perform the functions of said department, use any
portion of said surplus fees, receipts, special
funds or other available funds; provided, however,
that before doing so the head of such department
shall, under oath, make application, jointly, to
the Governor, the Attorney General and the State
Treasurer setting forth in detail the necessity
for using such surplus fees, receipts, special
funds or other available funds and itemizing the
purposes for which the same are to be used. Unless
the application is approved by at least two of the
three persons aforementioned, the surplus fees,
receipts, special funds or other available funds
shall not be expended, Any item set out in the
application can be deleted by decision of a majority
of the three persons aforementioned. All appli-
cations which are approved or denied must be signed
by those voting to approve or deny same. Said
applications, after approval or rejection, shall
be riled with and retained by the State Auditor
for a period of six months after the expiration
of the biennium ending August 31, 1941, and shall
remain open to public inspection during said period.
All surplus fees, receipts, special funds, or other
available funds on hand at the end of each year
of the biennium shall revert to the General Revenue
Fund of this State unless otherwise prohibited by
law, or unless otherwise provided herein. No
salary paid additional employees shall exceed the
amount herein appropriated for similar positions.
All disbursements shall be made on warrants issued
by the Comptroller on the State Treasury.”
In answering your second question, the first point
which presents itself for consideration is whether or not
the term “other available funds.9 as used in the Limitation
of Payments clause, is intended to include appropriations
made from the General Revenue Fund. It is to be observed
Bon. W. Lee O'Daniel, Page 4
that the Limitation of Payments clause does not refer to
appropriations made from the General Revenue Fund, but only
relates to surpluses existing in fees, receipts, special
funds or other available funds.
It will be observed that inthree separate and
distinct places in the General Rider to the G8neral Appro-
priation Bill, the Legislature has referred sp8oific9lly
to appropriations from the General Fund, in addition to
‘fees, receipts or special funds, and other available funds."
In the section of the Oeneral Rider relating to
*traveling expenses," this sentence is found:
"This provision shall be applicable whether
the item for traveling expenses is to be paid out
Of the'appropriation from the General Fund, from
fees, receipts or special funds collected by virtue
of certain laws of this State, or rrm other funds,
(8XClUSiVe of Federal funds) available for use by
a department."
In the section on "Salary Payments," this provision
is found:
"Each department head'shall number ponsecutively
the salaried positions in his de artment for which
an appropriation is made herein 7 either out of the
General Revenue Fund, fees receipts, special funds
or out of other funds avsiiable for use by such
department) and opposite the number of the position,
he shall set out the title of the position and the
neme‘of the person employed to fill the same."
And in the section on the "Preparation of'the Budget9
it is stated:
"The Board is directed to designate, with
reference to each position, whether the s9me iS to
be paid out of appropriation from the General Revenue
Fund, from fees and/or receipts collected by Virtue
of the laws of this State. or from other available funds.
In the event the salary of a position is to be paid
jointly out or an appropriation from the General
Revenue Fund, out of fess, receipts, special funds,
or out of other available funds, the Board of Control
ah911 indicate the portion paid or to be paid from
each. No salary items shall include an appropriation
for more than one employee. The Board shall follow
the same prooedure in itemising other expenditures
to be made by the departments of this State.9
In the "Limitation of Payments" clause the reference
to appropriations from the General Fund is eliminated, and
since in every other instance the Legislature, where it desired
to include appropriations from the General Fund, has specifio-
ally mentioned them, it must necessarily be presumed that the
Legislature intended to exoluse appropriations from the
General Fund from the "Limitation of Payments" clause. This
conclusion is reenforced, when we observe that, in the very
nature of things, there can be no surplus in an appropria-
tion from the General Fund, for, with respect to appropria-
tions from the General Fund, the Legislature does not provide
Hon. W. Lee O'Daniel, Page 5
a definite and fixed sum of money to be available at all
events, but provides for a'particular purpose Only such sum
of money 9s may be necessary for that particular purpose,
not to exceed the maximum amount made available for such
purpose. This conclusion is compelled by the provisions
of Section 1 of the General Appropriation Bill, which pro-
vides in part 9s follows:
"That the several sums of money herein
specified or so much thereof as may be necessary,
are hereby appropriated out of any moneys in the
State Treasury not otherwise appropriated, . ..9
Having determined that the authority of the Board
csnnot relate to supposed surpluses existing in appropriations
made from the General Fund, the question naturally erises
as to whet type of funds it was contemplated by the Legislature
should be within the jurisdiction of the Board set up in the
Limitation of Payments clause.
It is apparent thet it ~9s not intended thereby
to set up the Board 88 the supervising agency by the auth-
ority of whiah all funds appropriated by the Legislature
ror the various department should be spent, for the first
sentence in the "Limitation of Payments" clause, when oon-
sidered with the second sentence , clearly evinces the intent
of the Legislature that the Board should be authorized to
deal only with "surpluses," and that the departments are
free to expend such funds as 9re provided it by the Legis-
lature which do not come under the head of wsUrplus fundir~.w.
The existence of a surplus in a particular special
fund may only be ascertained by determining whether there
is in that special fund an amount of money in excess of
that which the Legislature has specifically authorized the
department to expend without procuring the permission of the
Board. The first sentence in the wLimitation of Payments"
clause would reflect clearly the intent of the Legislature
to limit the expenditures which might be made by a Board
without authority from the Limitation of Payments Board to
items of expenditures for which specific and limited amounts
have been provided in the Bill, were it not for the use of
the phrase, at the beginning of the sentenoe. "except as
otherwise provided." Is this hrase to be construed as
applicable to the method provi fied for the expenditure of
a surplus fund by the second sentence of the "Limitation
of Payments" clause, or is it to be construed as reflecting
the intent of the Legislature that the various departments
shall limit their expenditure9 to those items for which
particular and definitely limited amounts are provided,
ercept,in the instances where the Legislature has seen fit
to appropriate to a particular department, by special rider,
the entire surplus, to the uses of the department for the
p;;formance of the functions and duties imposed upon it by
.
In determining this question, it is essential that
we exemine the Appropriation Bill as a whole, having due
regard for the rule that the intention of the Legislature
must be gathered from the entire instrument rather than from
a particular and isolated portion thereof. In making such
an examination of the entire Bill, it becomes readily apparent
Hon. W. Lee O'Daniel, Page 6
that there are two separate and distinct classes. of'appro-
priations made from fees, rsc8iptS. and Special funds.
The first of these clams is typified by such
departmental approprietions as those for the Board of County
and Distritit Road Indebtedness, the State Highway Department,
the State Department of Education, and the State Banking
Board.
In each of these examples, there is found a common
characteristic. In eech of the exampled situations, there
is distinct appropriation out of a special fund for various
items definitely limited as to purpose and amount. But in
each instance there is also, in addition to the items
definitely limited 9s to purpose and amount, an appropriation
of the surplus limited as to purpose but unlimited as to
amount, excepting insofar es the amount of funds accruing
to the special fund during the period of time concerned will
automatically operate to limit the amount available for
expenditure.
In the appropriation for the State Banking Depart-
ment the Legislature begins by appropriating for various
purposes certain definite end fixed amounts. The special
rider ettached to and accompanying such appropriation prdvides
in part as follows:
"Subject to the limitations set forth in the
provisions appearing at the end of this Act, all
appropriations herein made for the State Banking
Department shall be paid out of their receipts,
and the Commissioner shall reduce his expenditures
so 9s not to exceed the actual receipts collected.
"...For the purpose of enforcing the credit
union'laws of this State, all fees collected under,
and by virtue of Chapter 11, Acts of the 41st
Legislature, and all unexpended balances are here-
by appropriated to the State Banking Department."
The appropriation for the Board of County and Dis-
triot Road Indebtedness begins by providing certain items
definite as to amount end purpose, for administrative expense,
said items to be paid out of the County and Road District
highway fund. The special rider appearing immediately
following this appropriation as a part thereof, reads in
part as follows:
"All other receipts and any prior year's
balance in the County and District Highway Fund
are hereby appropriated for each of said years
for the purpose of carrying out the provisions of
Chapter 13, Oeneral Laws of the Third Called Ses-
sion of the 42nd Legislature, end any amendments
thereto, including the payment of road bonded
indebtedness and of special road districts in ao-
cordance with said laws, and amendments."
For the division of the Department of Education
styled "mployees of the Textbook and Curriculum Division
and Textbook Depository" there ere provided certain items
definitely limited as to purpose and amount. The special
rider to the Department of Education appropriation reads in
pert as follows:
Hon. W. Lee O'Daniel, Page 7
eFor the purposes provided by lew, there are
reepproprieted for the biennium ending August 31,
1941, to the State Board of Education, all incomes
to, and any balance in, the evailable School Fund
and the State Textbook Funds, except 9s otherwise
appropriated by this Legislature, to be expended
and distributed in accordance with the laws of this
State; provided that textbooks may be purchased
only from funds arising from the State ad valorem
school tax."
And in the appropriation for the State Highway De-
partment, we find various items provided, limited definitely
as to purpose and amount, the special rider appended thereto
however, providing a8 follows:
"Provided, that the above and foregoing amounts
appropriated herein for the State Highway Department
and for services rendered for other agencies of the
State government to the State Highway Department
shell be paid out of the State Highway Fund upon
warrants issued by the State Comptroller, as provided
by Chapter 1. Title 116, Revised Civil Statutes, 1925,
and amendments thereto; provided further that ell
funds or balances of funds on hand September 1, 1939,
and all funds aoming into the State Highway fund,
and derived from registration fees or other sources,
after deducting the total of the speoii'io appropria-
tions herein made or hereby appropriated to the
State Highway Department for the establishment of
a system of state highways and the construction and
maintenance thereof, as contemplated and set forth
in Chapter 1, Title 116, and Chapter 186, general
laws of the Regular Session of the 39th Legislature,
and amendments thereto."
The other distinct class or type of eppr
from 9 special fund is composed of those instances %%~,"iiY
the Legislature has appropriated to the particular department,
out of the special fund dedicated to the use of that de srt-
ment, certain items definitely limited as to purpose anz
amount, and has made no disposition of the surplus in such
special fund by special rider appended to the particular
departmental appropriation. Typical of this class of appro-.
priation are the appropriations for the State Board of Barber
Examiners, State Board of Dental Examiners, and the State
Board of Hairdressers and Cosmetologists.
In the appropriation for the Stete Board of Barber
Examiners, the Legislature, after providing certain items
definitely limited as to purpose end amount, continues in
this special rider as follows:
"Subject to the limitations set forth in the
provisions appearing at the end of this Act, the
foregoing amounts for the Stete Board of Barber Ex-
aminers are hereby appropriated out of the State
Board Barber Examiners fund ,..w,'
And in the appropriation for the State Board of
Dental Examiners, the Lsgisleture, after providing certain
Hon. W. Lee O'Daniel, Page S
items definitely limited as to purpose and amount, continues
in the special rider appended thereto, as follows:
"Subjeot to the limitations set forth in the
provisions appearing at the end of this Act, all
appropriations made herein for the State Board of
Dental Examiners, shall be paid out of their local
receipts.w
And in the appropriation for the State Board of
Hairdressers and Cosmetologists, the Legislature, after
providing certain items definitely limited as to subject
and amount, continues in the special rider appended to
that appropriation, as follows:
"Subject to the limitations set forth in
the provisions appearing at the end of this Act,
all appropriations made herein for the State Board
of Hairdressers and Cosmetologists shall be paid
out of their local receipts."
In none of these departmental appropriations, or
in others of that type, do we find any attempt on the part
of the Legislature to provide for the disposition of any
surplus in the special fund, by the special rider appended
to the particular departmental appropriation.
We are thus confronted with the problem. of whether
the Legislature intended the wLimitation of Payments" clause
to apply only to those instances where it has by the special
rider 9 pended to the particular departmental appropriation,
appropr Pated the surplus in the speoiel fund to the use and
benefit of the particular department, or, on the other hand,
were the words "exce t as otherwise provided" intended to
eliminate those spec T)fit ap ro riations of the surplus~from
the application of the "LimPta t ion of Payments" clause,
end was that olause, therefore, intended as a conditional
appropriation of those surpluses which might exist in special
funds, in instances where the Legislature had, by rider to
the articular departmental appropriation made no effort
to p Pace such surpluses at the disposal oP the particular
department?
When there are two possible interpretations which
ted upon n enaotment f the Legislat
con-
````~.“``~n``4sh~g``aE``st``~t8see$i``1eoB8````~F~
struction which leads to ai unreasonable and absurd conclu-
sion, if there is another possible interpretation which is
more rational and sensible. The rule is stated in 25 Ruling
Case Law, at page 1019, as follows:
"While the Legislature may pass absurd legis-
lation if it is so inclined, before e aourt will
adopt such a construction of a statute as will lead
to an absurdity, it will inquire whether there is
not some other interpretation possible whioh will
not lead to that result. If the language employed
admits of two constructions and according to one of
them the enactment would be absurd, if not mischievous,
while according to the other it will be reasonable
and wholesome, the construction which will lead to
an absurd result should be avoided.”
Hon. W. Lee O'Daniel, Page 9
In support of these conclusions, that work cites
many suthorities from the Supreme Court of the United States.
And by this same work it is stated, at page 1025,
that:
"Where great inoonveni8noe will result from .
a particular construction that consturction is to
be avoided, unless the meaning of the Legislature
be plain."
Applying such rules to the problem under considera-
tion, it would seem to be manifest thet the Legislature did
not intend that the "Limitation of Payment" clause should
apply to such surpluses as were definitely appropriated by
the Legislature to the use of a particular department by
special rider to the departmental appropriation. To hold
otherwise, would be to say that the Legislature intended
to create an absurd and mischievous situation calculated
to impair materially the functions of State government,
and to result in great inconvenience in its administration.
At the outset it must be remebered that the
members of the Limitation of Payments Board are public
officials upon whom most onerous duties, occupying prac-
tically all of their time, have been imposed by lsw. To
impose upon them the additional duty, in effect, of super-
vising completely the expenditure of funds by such depart-
ments as the State Highway Department and the Board of
County and District Road Indebtedness, as well as the State
Board of Education, would be to impair materially the per-
formance of those duties the discharge of which is made
their prime function by the Constitution and laws which
created their positions.
As illustrating the absurdity of such an interpre-
tation, we may examine the appropriation for the Board of
County and District Road Indebtedness. The prime function
for which this Board was crested by law is that of disburs-
ing certain State funds, for certain State purposes, in
the amount and according to the manner set up in great
detail by the law which gives the Board its being. Was it
intended by the Legislature that before this Board could
perform the very function for which it was oreated, that
it should be required to demonstrate to the Limitation of
Payments Board the necessity for so doing?
We pass to the appropriation for the State High-
way Department. The State Highway Department is created
by statute for the purpose of establishing, constructing,
and maintaining a system of highways in this State. The
laws which create the Board have made it the prime function
and duty ofth8tBoard to determine where highways should
be built, of what they should be constructed, and how much
and what character of cement should be used in their con-
struction, if cement be used at all, when the necessity
for maintenance work exists, and what character of mainten-
ance work need be done in order to preserve and protect
such highways and insure maximum life and servicability.
The determination of such questions oalls for a high degree
of familiarity with the subject , and for expert technical
knowledge. Was it intended by the Legislature that, as
to the Highway Department, the Governor, the Attorney General,
and the State Treasurer, the members of the Limitation of
Hon. W. Lee O'Daniel, Page 10
Payments Board, should determine the question as to whether
or not it was necessary to build a strip of highway from
Whosit to whatsit, the route the highway should take (that
is, whether it was necessary that the highway go by the
particular route designated by the Highway Department),
whether the qwtity or type of cement reaommended by
the Highway Department for the particular project was
actually necessary, or whether s lesser amount and an
inferior grade might do', or whether money should be spent
for maintaining a particular stretch of highway, as recom-
mended by the State Highway Department, instead Of abandon-
ing it and building a new one?
Alas it the intention of the Legislature, with
respect to the appropriation for the State Banking Department,
for the purpose of enforcing the credit union laws
of the State of Texas, that the Limitation of Payments Board
should determine what was necessary to be done by the Bank-
ing Department to enforce the credit union laws of the
State and how much money should be expended for that pur-
pose? Was it intended by the Legislature, with respect
to the State Board of Education that the Limitation Of
Payments Board should determine whether it was really necess-
ary, if recommended by the State Board of Education, that
a certain number of textbooks be purchased, and that they
be of the particular type recommended by that Board?
Was it intended that the'niembers Of the Limitation
of Payments Board read the textbooks which the State Depart-
ment of Education proposes to purchase and determine thereby
whether the necessity for purchasing a particular textbook
actually existed, or whether such textbook ~9s out-moded
and out-dated and, therefore, it was not necessary that it
be purchased?
It seems to us that to ask these questions is to
provide the answers thereto. Certainly such 9 ridiculous
and absurd situation was not within the contemplation of
the Legislature. It was definitely not intended by the
Legislature, it seems to us, that the administration of such
affairs of government should be taken cut of the hands of
those qualified and designated by the general laws ;B;E
State to perform them, and placed in the hands of
whose experience, training, and opportunity of knowledge
of the particular subjects involved is and must necessarily
be and remain so limited that the greatest confusion and
inconvenience in the administration of such affairs of the
State government would necessarily ensue.
the points we make above,
we call attention to riation made by the Legis-
on of the Board of Insurance
Oommissioners. We find here that the Legislature has appro-
priated oertain items definitely limited 9s to purpose and
amount out of a special fund and, by its rider, has appro-
priated not only such an amount from the special fund as
is necessary to take care of the specific items provided,
but has also appropriated the entire balance of the fund
to be used by the Department for employing additional help
and for defraying all other expenses necessary for the
administration of Chapter 152, of the General Laws of the
Regular Session of the 42nd Legislature, and Chapter 264
Hon. W. Lee O'Daniel, Page 11
of the General Laws of the 44th Legislature, and any and
all amendments thereto and as amended by Senate Bill 397,
Acts, Regular Session of the 46th Legislature, 1939, and
has further provided in said special rider as follows:
mPhe head of the department shall make ap-
plication to the Board of Control and receive its
approval in writing before employees, other than
those itemized in the Appropriation Bill, are
employed. Said application shall set out the
reaaona and necessities ror the employment of
the additional employees."
Was the absurdity intended here by the Legislature
that this Department should apply to the Board Of Control
for permission to employ additional help, demonstrating
the necessity therefor, and thereupon should also apply
to the Limitation of Payments 3oard for the same authority?
If one of these Boards granted such permission and the
other refused to do so, which action should govern?
It seems to ua that by this particular rider, the Legis-
lature has definitely demonstrated its intention that
appropriations of surpluses of this character, made by
the special rider to the particular depertmental appro-
priation, ere to be available for the use of the particu-
lar department according to the terms of the special rider,
and are not intended to be available for the uses of the
Department only in the event that the necessity for using
them for such purposes is demonstrated to the Board in
the manner provided in the *Limitation of Payments" clause
in the general rider.
The "Limitation of Payments" clause is suscep-
tible of a construction which appears to be much more
reasonable, and it is that construction which we adopt as
reflecting the true intent and purpose of the Legislature
in enacting such a provision. Such interpretation is that
it was intended by the Legislature, in the enactment of
the "Limitation of Payments" clause, to make a conditional
appropriation of surpluses in certain special funds, in
instances where those surpluses had not been appropriated
and made available to the particular department'by special
rider attached to and made a part of the particular depart-
mental appropriation. This construction, it appears to us,
is more nearly in accord with reason, for it will be observ-
ed that the departments thus coming under the jurisdiction
of the Board are, in the main, those departments of the
State government whose prime function is not that of ex-
pending State moneys for the accomplishing of certain
State purposes, but, on the contrary, is that of rendering
* certain type of service. They build no roads; they buy
no books; they discharge no bonded indebtedness for the
State. As to them, the Limitation of Payments Board may
operate effectively and efficiently, for the necessity
that they be permitted to use the surplus in their particular
fund arises from the possible need for additional clerical
help, or more money for postage, and stationery. The
purchase of material supplies and equipment is but in-
cidental to and a small part of the work of the department,
not its chief function.-
The "Limitation of Payments" clause may, perhaps,
be made the more understandable by restating the first
f~;;ion of it, but preserving its original meaning, as fol-
Hon. W. Lee O'Daniel, Page 12
"It is the intention of the Legislature
that expenditures out of fees, receipts, Special
funds or other available funds shall be limited
to the purposes and in the amount itemized in
this Bill, except in those instances where we
have provided otherwise. It those instances
where provision otherwise has not been specifio-
ally made herein, if the amount of the fees, re-
ceipts, special or other available funds herein
referred to, are more than sufficient to pay the
items to be paid therefrom, the department to
which the said items out of the said fees,.
receipts, special funds or other available funds
are appropriated may, if necessary to adequately
perform the function of such department, use
any portion of said surplus fees, receipts, special
funds or other available funds, provided that be-
fore doing so, the head of such department shall,
under oath, make application, jointly, t0 the
Governor, the Attorney General, and the State
Treasurer, setting forth in detail the necessity
for using such surplus fees, receipts, speaial
funds or other available funds and itemizing
the purposes for which the same are to be used."
Answering your second question specifically,
therefore, we are of the opinion that the authority of the
Board relates only to those surpluses existing in funds
dedicated or devoted to the uses of a partioular depart-
ment, where an appropriation of such surplus in such dedi-
cated funds to the particular department is not to be
found elsewhere than in the Limitation of Payments clause.
In answer to your third question, we beg to advise
that, in those instances where the Legislature has specifically
limited the authority of a perticular department to expend
its funds by providing that "no salary except extra labor
shall be paid except those herein specifically itemized,W
this limitation upon the purposes for which appropriated
moneys may be expended binds not only the particular
department, but also the Limitation of Payments Board.
In the very nature of thin s, t3is must necessarily be
true, for, though the Boar f should authorize the e en-
dlture of a surnlus for the hiring of additional aa
"p aried
employees in such an instance, the De artment would never-
theless continue to be bound by this flimitation upon its
authority for we find in the General Ap roprietion Bill
fonJ,apt&$~tq conferr d u on the B rd Ejher ex r ssl or
o euthorfze the exoen88tu$eeo moneyg %or 8ur-
poses for which the Legislature has stated and provided
-c-----“,
specifically that the Department shall not spend them.
The observations stated above, in the immediately
preceding paragraph, apply even more forcibly to the Board's
authority to allow additional expenditures for traveling
expenses out of surpluses. In the General Rider to the
General Appropriation Bill, we find the fo,llowing:
"It is provided that no expenditure shall
be made for traveling expenses by any department
of this State in exoess of the amount of money
itemized herein for said purpose. This provi-
sion shall be applicable whether the item for
Hon. W. Lee O’Daniel, Page 13
traveling expenses is to be paid out of the
appropriation from the General Fund, from
fees, receipts or special funds collected by
virtue of certain laws of this State, or
from other funds (exclusive of Federal funds)
available for use by a department.*
This provisionis clear, explicit, and needs
no construction, for it amounts to an absolute prohibition
against the expenditure of a greater amount for traveling
expenses than hss been specifically allowed for such pur-
pose by the Legislature itself. Sinoe we find no author-
ity conferred upon the Board, either expressly or implied-
ly, to ignore this provision in dealing with surpluses,
it follows that the board la without authority to allow
any additional amount whatsoever for traveling expenses
to any department out of any funds over which it has juria-
diction.
Answering your last question. you are advised
that, in our opinion, the Limitation of Payments Board
is authorized to deal only with “actual surplus8s.w In
other words, there must be on hand in the partioular
special fund subject to the jurisdiction of the Board
an actual surplus before the Board may allow additional
expenditures, and, of course, it follows t’et the Board
may not authorize additional expenditures beyond the
amount of the actual surplus available. The Limitstion
of Payments clause in terms relates only to a presently
existing, and not a prospectively available, surplus,
for it states:
“If, however, the amount of the fees, re-
ceipts, special or other available funds hare-
in referred to are more than sufficient to
pay the items herein designated to be paid there-
from, the department to which the said fees,
receipts, special funds or other available funds
are appropriated, may, if necessary to adequate-
ly perform the functions of said department, use
any portion of said surplus fees, receipts,
special funds, or other available funds; . ..v
To hold that the Board is authorized to allow
obligations to be incurred by the Department against an
estimated surplus which may or may not accrue, would be
to do violence to the legislative intent, gleaned from
an examination of the entire appropriation bill, that ex-
penditures made and obligations incurred by any depart-
ment of the State government shall not exceed the amount
actually available to that Department for expenditure.
We trust that the foregoing will serve to ade-
quately answer the various questions presented by you.
Yours very truly
AlTORNEYGENERALOF TEXAS
BY
R. W. Fairchild
ASSiStSnt
RWF:pbp
Hon. W. Lee OIDaniel, Page 14
This opinion has been considered in conference,
approved, end ordered recorded.
Gerald C. HaIann
ATI'ORNEYGENERAL OF TEXAS