Untitled Texas Attorney General Opinion ( 1943 )

THEA``ORNEY GENEHAL
OFTEXAS
Honorable Wm. Calvin Montgomery
Chairman, House Investigating Committee
Under H. S. R. No. 168
House of Representati.ves
Austin, Texas
Dear Sir: Opinion No. O-5149
Re: Does the Speaker of House of Representa-
tives have legal authority under H. S. R.
No. 8 to pay from the Legislative Contin-
gent Expense Fund the compensation for
additional clerks for the School Census
Division of the Department of Education?
We acknowledge receipt of your opini,on requ,est dated March 22,
1943, which reads as follows:
“As chairman of the Hoxse Investigating Committee as-
signed to examine and investigate the school Census Division
of the Department of Educati,on, especial!y with reference to
money spent out of the Contingent Fund of the Legi,slature for
employment. of cl,erks in the School Census Division of the De-
partment of Education, I am directed to request of you an opi.n-
ion as to whether clerks assi,gned to the School Census in the
Department of Education can be lawfully pal,d out of the Contin-
gent Fund of the House ?
‘“Senate Bill No. 1 of the Forty-Eighth Legislatwe makes
the following appropriation for contingent expenses of the Legis-
lature:
“‘An Act making an appropriation of the sum of Three Hun-
dred and Fifty Thousand Doll.ars ($350,000.00), or so much
thereof as may be necessary, out of any funds i.n the State Treas-
ury not otherwise appropriated, to pay the contingent expenses,
and to pay the mi,leage and per diem of members and the per diem
of officers and employees of the Regular Sessi,on of the Forty-
eighth Legislature, and to pay any unpaid accounts or expenses
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Honorable Wm. Calvin Montgomery, Page 2, O-5149
of the Forty-seventh Legislature; and declaring an emergency.’
“House Simple Resolution No. 8 provides for the appointment
of certain employees of the House of Representatives, and provides further
that the Speaker shall have the power to appoint extra employees whenever
in his judgment they are needed, and that each shall perform such duties as
the Speaker may require.
“For several years it has been .the custom of the ~Legislature
to employ committee clerks and place them on the House of Representa-
tives pay roll for the purpose of working in the School Census Division of
the Department of Education. They are carried on the pay roll of the House
of Representatives and are paid out of the Contingent Fund of the Legislature,
but their employment is for the purpose of checking the school census under
the direction and supervision of employees for the Department of Education
in accordance with the Act providing for the checking and approving of the
annual school census by the Department of Education.
*Our committee has been appointed by a House resolution for the
purpose of determining whether this constitutes a proper expenditure from
the Contingent Fund of the Forty-eighth Legislature, as well as other mat-
ters concerning the nature and necessity of the work performed by these
clerks.
“Question: Do we have the legal authority to pay money out of the
Contingent Fund created by an Act of the Legislature, Senate Bill No. 1, for
the purpose of paying mileage, per diem, and contingent expenses of the
Legislature, for the employment of additional salaried help to work in the
Department of Education and perform services under the provisions of the
Act of the Legislature creating the School Census Division of the Department
of Education and providing for the annual checking and approving of the
school census ?”
That portion of House Simple Resolution No. 8 referred to in your
letter reads as follows:
“BE IT FURTHER RESOLVED, That it shall be the duty of
the Speaker, and he is hereby empowered, to dispense with the
services of any employee who, in his judgment, is not further
needed, or for misconduct of any employee; and he shall have
the power to appoint extra employees whenever in his judgment
it is needed. The duties of the employees heretofore mentioned
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Honorable Wm. Calvin Montgomery, Page 3, O-5149
shall be such as are required by the Speaker of the House of
Representatives, and he is hereby empowered to employ part-
time employees, and to di.vide the duties, apportion the hours,
and fix the pay of such part-time employees, within his discre-
tion.
“Any of the employees may be excused by the Speaker for
causes deemed by him suff,icient; provided fu,rther, that any
employee who shall absent himself without leave shall not re-
ceive any compensation for the time missed during his absence.
The salaries of the employees shall begin when they are in-
structed to begin work by the Speaker.”
The Appropriation Bill for the Executive and Administrative De-
partments of the State Government passed by the Forty-seventh Legislature
contains an appropriation of $24,420.00 for the School Census Division of
the Department of Education for the present fiscal.year ending August 31,
1943. General and Special Laws, Acts of 47th Legislature, page 1151.
Following this appropriation and as a part of the Act is Section
(15) b of the General Provisions, which reads in part as follows:
,~;;:Th,&appropriations herein provided are to be construed
as the maximum sums to be appropriated to and for the sev-
eral purposes named herein, and the amounts are intended to
cover, and shall cover the entire cost of the respective items
and the;sane shall not be supplemented from any other sources;
and, except as otherwise provided, no other expenditures shall
be made, nor shall any other obligations be incurred by any de-
partment of this State . . . .” General and Special Laws, Acts
47th Legislature, page 1292.
This provision against supplementing the appropriations is broad
enough, in our opinion, to prohibit the Legislature as one of the departments
of this State from supplementing an appropriation by the indirect means of
paying the salaries of additional employees who work for one of the other
departments for whom an appropriation has been made, when there has been
no bill passed authorizing an additional appropriation for the particular de-
partment.
We do not think that House Simple Resolution No. 8 was passed for
the purpose of repealing Section (15)b of the General Provisions of the Depart-
mental Appropriation Bill of the 47th Legislature. However, if such was the
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Honorable Wm. Calvin Montgomery, Page 4, O-5149
purpose, it is our opinion that the attempted repeal was ineffective.
It is the settled rule in this State that a statute cannot be amended
by a resolution. In Caples V. Cole, 129 Tex. 370, 102 S. W. (2d) 173, rehear-
ing denied 129 Tex. 370, 104 S. W. (2d) 3, Mr. Justice Sharp speaking for the
Supreme Court said:
“It is plain that the resolution not only undertakes to inter-
pret or construe ,what the original act contained but also to read
into said law words and intentions not expressed in the original
act. Statutes cannot be amended in that manner. Resolutions play
‘their part in our legislative history, and are often resorted to for
the purpose of expressing the will of the Legislature, but statutes
cannot be amended by resolutions.” 102 S. W. (2d) 176.
In Humble Oil & Refining Co. v. State, 104 S. W. (2d) 174, error re-
fused, the Austin Court of Civil Appeals said:
“A statute cannot be amended by a resolution. It must be
amended by re-enactment and publication at length, and by an
act or bill which is subject to the veto power of the Governor.
Article 3, Sections 29, 30, 35 and 36 of the Constitution of Texas.”
104 S. W. (2d) 185.
The custom of the Legislature in employing clerks to work for and
under the supervision of the School Census Division of the Department of Edu-
cation and in paying them out of the Legislative Contingent Expense Fund by
putting them on the pay roll of the House of Representatives is also objectional
on constitutional grounds.
In our opinion No. O-4609 we have heretofore ruled that so much of
House Bill No. 284, General and Special Laws of the 47th Legislature, page 880,
which undertakes to give administrative powers to a “Joint Legislative Advisory
Committee” created by the act,,was unconstitutional. In that opinion we said:
“It is the function of the legislative branch of the government
to make the laws; it is the function of the executive branch of the
government to administer and execute those laws. In the statute
under consideration, the Legislature of the State of Texas has under-
taken not only to declare what the law shall be, which is clearly its
Honorable Wm. Calvin Montgomery, Page 5, O-5149
prerogative, but has also undertaken to clothe a portion of the
membership of the Legislature, the Joint Legislative Advisory
Committee, with the authority to execute and administer the
law passed by the Legislature. Under Article 2, Section 1, of
the Constitution of the State of Texas, the Legislature is power-
less to clothe itself, or a portion of its members, with executive
aut,hority. *
We are of the opinion that the speaker of the House of Representa-
tives would have no greater power in this connection than an investigating
committee appointed by him. The constitutional power of the Legislature to
appoint investigating committees and pay their expenses and their compensa-
tion (when they are not members of the Legislature or other State officials)
in order to get information requisite to the right use of the legislative power
is implied from the powers expressly granted. Terrell, Commissioner v.
King, 118 Tex. 237, 14 S. W. (2d) 786. This implied power, however, is lim-
ited by the constitutional provision which prohibits the Legislative Depart-
ment from exercising any power properly attached to the Executive or Judi-
cial Departments. Art. II, Sec. 1, Texas Constitution; People v. Tremaine
(New York), 168 N. E. 822; Langever v. Miller, 124 Tex. 80, 76 S. W. (2)
1035. In the last case cited, the late Chief Justice Cureton speaking for the
Supreme Court said:
“Under this division of governmental power it is now an estab-
lished and fundamentll principle of constitutional law that the execu-
tive cannot exercise either judicial or legislative authority; the judi-
cial department cannot be clothed with executive or legislative power;
and the legislative ‘magistracy’ cannot exercise the functions of ei-
ther the Executive or the Judiciai Departments. 12 Corpus Juris,
p. 802, § 234 et seq. Corpus Juris, supra, declares: ‘The separation
of the powers was believed by Montesquieu, by Blackstone, and by
American Constitution makers of the eighteenth century to be one of
the chief and most admirable characteristics of the English Consti-
tution. ’
‘A principle which is the very foundation of the government of
the United States and of the several states must be deemed one es-
sential to the preservation of the rights and liberties of the people,
and should be thoughtfully and faithfully observed by all clothed with
the powers of government.”
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Honorable Wm. Calvin Montgomery, Page 6, O-5149
Under the facts stated in your opinion request, we are of the
view that the employment of the clerks mentioned is an administrative
or executive duty imposed on the State Superintendent of Public Instruc-
tion, under Article 2820, Vernon’s Annotated Civil Statutes and not a legis-
lative function. The 47th Legislature adopted this view by the appropriation
of $24,480.00 for the biennium for salaries of Clerks, Directors and Super-
visors in the Census Division of the Department of Education and $24,360.00
for maintenance and miscellaneous expenses of the Census Division. (S. B.
No. 423, General and Special Laws, 47th Legislature, p. 1151) and by an addi-
tional emergency appropriation of $6,000.00 to the Census Division in which
it provided that ‘all moneys used in the checking of the census shall be paid
out on an hourly basis; and provided that such compensation received for
said hourly basis shall not exceed forty (40) cents per hour.” H. B. No. 392,
General & Special Laws, 47th Legislature, p. 469.
We, therefore, respectfully answer your inquiry in the ~negative on
each of the grounds stated.
Yours very truly
ATTORNEY GENERAL OF TEXAS
By $p%
Fagan Dickson
Assistant
FD:BT
APPROVED
OPINION
ATTORNEY GENERAL OF TEXAS COMMITTEE
BY&%‘%?
Chairman