Untitled Texas Attorney General Opinion ( 1941 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Honorable Bert Ford, Adnlinicitrator
Texas Liquor Control Fmclrd
Austin, Texas
Demr Sirs
We are pleased to
o inion front this departaont.
t Ke question which you have p
are therefore taking the 1
rollers1
nt s ter upon
vbe ComptrolL8r ei Publba ;reeounts haa
raised the question a$ to whether OF not the
phraseology or this seotlon does in faot pro-
vide a epealfia appropriation to the Tazae
Liquor Control Board for the purposes speOlfle&
in tha aeatlon.
We aan recall mfm appropriations heretofore
made under provisions 6Ll lar to those oontained
in this Aot, for which reason it was not antiai-
pate4 that any question mu14 arise with respeot
to this matter, Aoting under that assuaaptlon,
e6mmltmentcr have alre@dJr been medo an4 the number
of auditor8 pmlded have already been employed.
We have aleo arranged Sor and had printed the
preaOr%ptiOn t8x St&Apt3and htiY8 iWUrr86 other
expenoaa under this Aot. For these raaeons It
1s tiportant that we know as q~ulakly a6 possible
whether a' vali.4 appropriation has been lpade and
mwld appreaiate your adyiafng this oftiae and
that of the Comptroller of Publie Aooounts a6
quiotiy au pe66ible.r
The termiaolo f ln Beetion 3 0s Artiale Ix or
mull8 Blll 8 "b8iOY8 al f OOation of Sunds darlyad irclll the
pesorlptlon staap tax herein levied* refers to Seation 8
of Artiale IX whldh reads Wmd8 derlred from the preaerip-
tlon stanp tax herein levied shall be allooated a6 herein-
after provided in this Aat.* Thla in turn refrra to Artlole
X of Bouse Bill 8 which alloaates the funds In part to'ths
Available Sohool Fund an4 in part to a RalaaranOe fund in
the Treasury"..
The nmmlfeat purpom of the Legislature in SoOtiOn
3 was to appropriate "maoh fwid6 a6 may be nooesearJI(( SOP the
a4dltlonal and requlslte admlnl6tratlon whioh would baaome
waeewry.
We must therefore determine It seotlon 3 or Artiole
IX O? Eouee Bill 8 oonstltutee a euttiolant and valid appro-
priation in the light of Se&ion 6 of Artlola VIII of the
Constitution of Texas whloh read6 aa foll.awsI
"No money shall be drawn ?rom the Treaasuxg
but in pursuance of speclflo appropriations msde
by law: nor shall any appropriation of' awne)' be
&de f&r a longer teim than -~two (S) yeare. :. .*
we shed1 first diaaues the question 0i whether thle
attempted appropriation Ooapllea with tho Constitutional re-
qulrement that it be speolrlo.
-norable Bert Ford, AdalnlIMator, Page S
In Atkins T. State ZIighwap Department, 201 8. 1.
226, the mstln Court of ClvIl Ap enl8 oonsldered this quba-
tlon in relation to an approprlot f on deaorlbe4 Ln the aourt’s
opinion as follows:
*AU funds oomlng into the handa OS the Highway
Commlmion, derived from the Registration Fees here-
inbefore protided for, or from other souroes, ais
oolleotsd, shall be depoelted with the State Trw-
surer to the credit of a apeoial fund designated as
the ‘steta, lUghway mar ma &all be pal4 (out)
only* la the manner prov 1ded in the AOt an4 for pur-
pOWS 6tated.
After revlewlng the hlrtorfoal praatloa of the Leg&a-
lature in appropriating in auoh manner, the Court aoneludoaI
We think the Lugi8lature had the power to
make the appropriation, here Involved, in the
mmner thet it did, and we hold that the pto-
rlslons oi the A& In re@rd thereto eonstibuto
R vdia 5ppsopriatlon of the funds nmntloned to
a04 for the purposes stated in the Aat. It I8
not to be underetood, however, that we hold the
ap roprintlon Good for a longer term than two
(27 paam* . .*
In Tiokle v. Finley, 91 Tex, 4%, 483, it was aaid
by the Suprem Court I
*ft is alaar, t&t 6n appropriation need, not
be made lk the general approprlatlon bill. It 161
also true, that no speoifI@ woords are neoeseary ln
order to make an appropriation; and it may be Bon-
oedea, as 0.3ntdie4, t&t an appropriation map be
made by l;:.~lioation when thi+ language eplployed
le~¶~ to t&o belief that such *Pa8 the intent of
the LegisLature. , .”
;ryaln it was declared by the Supreme Court, apealc-
1nC through Zr. Justioe Crltz, in National Blsouit Company
Y. state, 136 S. W. (2d) 689, 693t
*AB just stated, one of the provisions Of
Seotlon 0 of Artlale 8 of our Conatltutlon re-
qulres all appropriations of money out of the
State Treasury to be speaiflo. It is settled
anorable Bcirt Ford, Administrator, Pago 4
that no partloular form OS words 1s require4 to
renderan approprlatlon epeolflo wlthin the mean-
znof the constitutlonal provielon under dleous-
It is suffl~lent if the Legislature author-
lms'the expenditure by law, and spaoltles the
purpose for whiah the approprfatlon Is amdo. m
appropriation oan be mado for all funds oolp~
from certain souross and drposlted in a epeelal
fuud ror a designated purpose. Za mash imMienee8,
It Is not neoeesary for the appropriating Aat to
name a oertaln 6um or even e eertaln maximum sum.
38 Tex. hr. pp. 844-845, 860. W, aud authorl-
ties there ai ted."
At page 644 of Tex, fur., Vol. 98, olted by the
Supraum Court In the foregoing oeae, it is veldt
"The approprlatlon need not, however, be mdr
ia general appropriatfon
the bill nor lr enj par-
ticular form of wurdSl required. ft 16 sufflolent
if the Legislature euthorlree the expenditure by
law, and specifies the puxpoae ior whioh the appre-
prlation Is made.*
Cited in support or the text are the 6e8e8 of Tm-
reU I. Spark8, 104 Tex. 191, l88 8. W. 1619, b the $uprrro
Oourt, ana Cherokee Countr f. Odea 997 8. 9. % 5S frevermd
on other grounds, 15 S. n. (Ed) &5&), In the letter aem lX
Wa8 raid;
*It i@ oufflolent if the Le&rlatUe apther-
ioes by au appropriete.law the expendltuse, and
fix%8 some lieritation ~11~013the aPOunt.*
In the Terre11 aa8e, the 80 FIIL~ Court oonstruad
aa epproprlatlon which Wa8 tri the f0 lf owing bULgUyY8l
“for the purpose of enforoing any and all
laws of the State, CC Texas, and far ths purpare
of paying any ana all neaeasary expense8 in bring-
lag suits or paying mp58er In proseauting 8apI,
there 16 hereby approprleted~out or any m58y in
the state Treasury, not otherwl8e appropriated,
the 8ura of Twenty-fire Thousand Dollar6 (#95,000)
or 80 muah thereof a8 may be noOe88ary, to be U-
pend& under the dirsdtloii of the kttorney.General
gonorable Bert Ford, admlnlstrator, I-age 5
by and with the approval Of the GovernoF, and to
be paid upon warrants drawn by the ComptrolJer
o? i;ubllc lraOounts on vouchers approved by b&
Attorney General."
PertaInIn& thereto, the Supreme Court sala:
*We are of the opinion that the Aot of the
31st Leglsl.ature which is oopled above Is euffl-
oiently speolflo In making the appropriation there-
ln mentimed ana is not vlolatlre of Seation 6,
.+xtlale VIxr, of the COn8titutiOn."
Adrertlaa; to Seotlon 3 of nrtlale XX of House sll 8,
the fo~crwing Is ap uantr (I) The Legl8leture ha8 eutheited
the expenditure by %w*, (2) it has epeolfled the purposes fop
whiOh the approprlatlon is made; (3) it ha8 limited the a&e- "
priatlon to the sum8 necessary to a0ooPspllsh the 8peciXled
admlnl8tratlve cots. The Supreme Court awlarea In the National
Bi8Ouit Company Oa8e that it lo nOt nsoe8sary for the appro-
priation to nams a aerta5.n 8um or a maximumsum.
Under the authority of the oaaee whioh sm hate re-
viewed, It 1~ our opinion that the appropriation In Seotlm S
of Art1018 Ix of House Bill 8 Of the 47th Legislature is suf-
fiolently 8peOlflc wlthln the requirements of the Constitution
of Texar.
We turn now to the question of whether the appro-
prlatlon may be~upheld under the pr0v18lon of SeetlOn 6 Of
Article VIXI of the Conetltut$on whloh provides that no ap-
propriation of meney shall be llyIda far a longer term than
two yeare.
seotlon 8 0i Artlole fI of BouM Bill 8 dOe8 5Ot
expreesly mik0 an eppraprlatlon for a two year term nor for
any term aertain. It Is, haersr olear that Art1816 XX
would beoome effeotlre thirty (301 days fros the effeotlva
date of House 313,.6+
Xt IS also !mnlreet that the admlnlstration``of brtl-
01s IX wuuld be required lnmedlat%Ly in the partioulars pro-
vided for In Seotlon 3 therabf. A new tax we0 leviedi it wa8
to be paid by the afflxatlon of tax stamps and these 8talPp8
nould have to be BeaUred; new xevenues tRotid be reoaired ad-
ditional employees and auditors would have to be employ0 d $ and
new forms, records and regulations would become essential.
&norable Bsrt Ford, Mmlnistratm, Page 6
Iii the YOTy llatUl’0 Of Artiah E, anb Of &use BiU
8 Itself, we nwreaearily must eonolude
thst the Legislature
appropriated to the Texas Liquor Control Board the funds neoes-
sary for the administration of the Artiole Immediately upon .
the effectfve date thereof.
This being true, together with the faot that the
L@.slature did not expressly preeoribe the tern of the ap-
propriatlon, may It be upheld, although not for longer than
a two year term? We t&Ink 80.
In Opinion MO. O-3621, this departpasnt reaently held
that an appropriation iOr an apparent period of longer than
two years nri~ynone the lees be valid for a tw year term, al-
though ino ratlve thereafter. We beli.ere that the prlnoiples
announoed G Opinion HO, O-3Ml are likewlee appllaable to the
question at hand.
The Constitution prohibits an approprlatlon for a
longer period than t*rr, year8 to prevent one Legislature from
direatlng and oontrolling the expenditure of State fiuwls be-
yond the omtrol of a subsequent &gloluture. This 18 the
fundamental prlneiple involved, Constant rlgilanoe over the
finances oi the State is thereby aahiov6dr Mistakes of one
Legislature in authorlzlng the expandlture of money may bo
oorreoted by the subsequent Leglslatura. Therefore It -1s hot
oontrary to the Constitutional principle enunciated in Yeo-
tlon 6 of Artiole VXII of the Constitution OS Texas to hold
'that an approprIatIon by one LegI8lature bt no fixed duration
may be upheld'for not longer than a two year period when th6
prerogatives of the forthoomlng Legislature ln raspeat to
the expendituree OS publio moneys will not be trangreased.
It 1s understandable, thererore, when thEzrgtnz
Atkins Y. State Highway Dapartmant, sups, say61
to be understood, horever, that.we hold the appropriation
gtood ror a longer term than two (8) yearae.
And when the Supreme Court OS Texas in Hekle Y,
Binloy aupra, dealaresr "ii they had made an appropriation
in un&takable terms whioh was to oontinue for all time, it
tight be held valid for two years, and inopsratlvs thereafteP.
‘-norable Bert lord, Mmlnlstrator, Eage 7
Whioh prinolple is again affirmed by the Supreme
Court in Dallas County v. MoCornbs, 140 S. W. (2Q) llO9, wbere-
in it was said:
*Plaintiff in error contends that even if
this apFro~rlati3n running for five years is in
violation of the;: two years* provision of ueetlon
6 of &ticle VlXX of our ionstltutlon as applied
to the five year period taken as a whole, still
it is not in vfolatlon ot sucrh aonstltutlonal
provision as applied to the first two years of
tie five year period. It seems to be the law
that where the Legislature has made ‘an aaDr*
ri~atlon in unmistakable terms, @ which continues
or a longer period than two years, suoh appro-
priation may be upheld for the first two years,
and would be inoperative thereafter, Fiakle Y.
Finley, 91 Tsx. 484, 44 S.W. 480, 4@. It will
be noted that the rule of law announosd in ldokle
v. Finley, supra, aontem lates that that apprc
priatlon shall be made ‘ii unmlstabble terms’.
We interpret this to ,Qean that lf en approprla-
tion .is made for more than two years, it oan be
enfaMed for the first tm years if it appears
that the Legislature undoubtedly Intended sueh
apgroprlatlonto operate for two years, regard-
less of whether or not it could do so thereafter.
Fe th%k that this rule oannot aid this appro-
priation, beoause wbsn all of the provisions of
this hat are oonslaered together, we cannot say
tt;atthe Legislaturewould undoubtedly have passed
it to operate for two years only, lnstend of five
years as provided by the Act.
“.. . . .. n
ILouse Bill 8 is a tax mearureg itis c&led the
omnibus tax law. One of the numerous additional or new
taxes inposed by the Act is found in Artiale 1X. The ro-
visions of Article IX were to beaome eff8etive thirty 'I90)
days from the effeotlve date of House Bill 8. The appro-
priation ln Seotion 3 of ,,;rtiole IX w~ls for the obvious
and In the Inherent neaessity, of enabling the
+$$??%.quor Control Board to enforcre and colleot the tax
Honorable B&t FOrtl, AbPinlStrator, Page 8
levied by .irtlolO ut. The Legislature itself recognized
that new Stamps, additional auditors, eaployeea, torum, and
reoorde, would be neoartaary to efteotuate the pro~lslont~
of .irtlole IX. These eonsldertatlon8 oorapel ud to attribute
to the Leglsleture the intent that the appropriation in SOQ-
tion 3 should be operative regar4leas of whether or not it
eeula be 60 ror e longer psrlod than two years.
AOOOr6f~l~, It la the 0oneldersd opinion oi this
department that the appropriation in seatlon 3 of Artiole IX
or House Bill 8 or the 47th Legfslature is sufriolentlp spe-
oifio under the Constitution of Texas and that the approprla-
tlon mde therein ia efrectire although not for a longer
tera then two years from its ektlve date an4 until an4
as mocllrled or superseded by tbs 67th Legisiature. See SaO-
tion 6 0r ArtlOle XXI o? IEDuarBill 6,