Untitled Texas Attorney General Opinion

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The Honorable Lane Denton Opinion No. H-822
Chairman
Committee on Social Services Re: Effect of Governor's
House of Representatives determination that Texas
P. 0. Box 2910 Youth Council appropria-
Austin, Texas 70767 tion contingency has been
partially met or sub-
stantially met.
Dear Representative Denton:
For the Committee on Social Services you have asked
several questions regarding a rider to the 1976-1977 qeqerai'
appropriations act provision for the Texas Youth Council and
the effect of certain actions of the Governor',relatinqto
it. The provision, in pertinent part, and thqrider reed:
TEXAS YOUTH COUNCIL
CENTRAL OFFICE
For the Years Ending
August 31, August 31,
1976 1977
. . . .
6. Community Services: ‘i
. . . .
c. Alternate Care 4,OUQ,UQO 5,QQQ,QOQ
. . . .
p. 3468
The Honorable Lane Denton - page 2 (H-822)
Pursua;:tto the provisions of Article
689a-4b, Vernon's Civil Statutes, the
appropriations for each fiscal year under
Item 6c, alternate care, are made contingent
upon a finding by the Governor that the
following fact exists for each fiscal year:
1. That the Texas youth Council has
developed and adopted a plan for allocation
of the appropriation for community assistance
which takes into consideration full utiliza-
tion of existing facilities in a given area
prior to the allocation of funds for new
facilities in that same area.
The appropriations for each fiscal year
under item 6c are hereby appropriated for the
establishment of halfway houses for the care
and treatment of children under the custody of
the Texas Youth Council, to be expended on I
salaries in addition to those specifically
listed in the Schedule of Classified Positions,
other expenses and all other activities for
which no other provisions,are.made. The funds
may be expended also for purchasing services,
including appropriate housing, meals, psychiatric,
casework and counseling services from existing
public or private agencies. Acts 1975, 64th
Leg., ch. 743 at 2417, 2503, et seq.
On September 29, 1975, subsequent to the effective date
of the above general appropriations act provisions, the
Governor advised the Comptroller of his determination that
'the specified fact has been partially met" and that he was
"authorizing the Youth Council to utilize $l,OQO,OQO for the
alternate care program." On February 12, 1976, the Governor
further advised the Comptroller of his determination that
"the specified fact has been sufficiently met to authorize
the youth Council to utilize an additional $l,OOQ,QQQ in the
1976 fircal year for the alternate care program."
p. 3469
The Honorable Lane Denton - page 3 W-822)
The Comptroller, we are advised, has funded the appro-
priation item only to the extent of the $2,OOQ,OQQ authorized
by the Governor.
Because some of your questions are made moot by our
answers, it is necessary that we respond to only three of
your questions. your first question is:
Is Art. 669a-4b constitutional or doea it
attempt to confer upon the Governor powers
denied him under Art. IV, 6 14 of the Con-
stitution of the State of Texas?
Article 689a-4b, V.T.C.S., provides:
Section 1. The Governor of the State of
Texas is authorized to find any fact specified
by the Legislature in any appropriation bill aa
a contingency enabling expenditure of any
designated item of appropriation. ,
Sec. 2. (a) The Governor shall base his
finding on the eviden'ceas it exists at the
time of his determination: provided.the Leqis-
lature may by condition in an appropriation
bill require such determination to be made
following a public hearing.
(b) The decision of the Governor, together
with his findings of fact, shall be filed with
the Comptroller of Public Accounts and the
Legislative Budget Board.
(c) The Governor's decision shall be final,
subject to review in the courts by mandamus
or other,appropriate legal remedies.
(d) His certificate, under the seal of his
office, stating his decision, shall be evidence
of hie decision.
The constitutionality and effect of article 609a-lb war
considered in Attorney General Opinion H-207 (1974). There
we said:
p. 3470
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The Honorable Lane Denton - page 4 (H-822)
Insofar <.s the :.tilCi&will authorize
an appropriation to be made to hinge
upon the determination by the Governor
of the existence of a fact, and not upon
any exercise of his discretion, we think
it valid . . . .
. . . [Glenerally, an appropriation may be
made subject to a determination by
the Governor, or another administrative
officer, that an event has occurred or
a fact exists.
In this~case, the 1976 fiscal year appropriation item
for the Texas Youth Council has been conditioned upon the
existence of a fact, i.e., the development and adoption by the
Texas youth Council o-plan for allocation of the appro-
priation for community assistance which takes into consider-
ation full utilization of existing facilities in a given
area prior to the allocation of funds for new facilities in '
that same area. The Governor has been delegated the respon-
sibility for determining whether such a plan has been developed
and adopted, not the reeponebility for shaping the plan or
for approving it. The latter authority cannot be given him
by an appropriation act rider alone. Attorney General
See also Attorney General Letter
Opinion X-268 (1974). --
Advisory No. 2 (1973).
The next queetion is:
If the rider does call for a finding of
fact, can the Governor determine that the
'fact' partially exists and thereby authorize
only a partial expenditure of funds? Or does
the contingency contained in the rider apply
to the entire appropriation so that~either
all or none is released, depending on the
Governor’s finding7
p. 3471
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The Honorable Lane Denton - page 5 (H-822)
The Legislature delegated to the Governor the power to
determine whether or not a particular fact exists. It has
not given him the power to determine whether the appropriated
funds should be released in whole or in part. Article 699a-4b
permits the Governor to find a fact specified by the Leqisla-
ture "as a contingency enabling expenditure of any designated
item of appropriation.! (Emphasis added). A definition of
that term was given in Commonwealth v, Dodson, 11 S.E.Zd 120
(Va. 1940) and was quoted with approvalbye Texas Supreme
Court in Jessen Associates, Inc. v. Bullock, 531 S.W.Zd 593,
599 (Tex.Gup.1975). The C= iiidxcatedthat "[a]n item
in an appropriation bill is an indivisible sum of money
dedicated to a stated purpose." See also Fulmore v. Lane,
140 S.W. 405 (Tex. Sup. 1911). Inthiscase, Eemof
appropriation is an indivisible sum of $4,QQO,OOO. If the
fact is found to exist, the whole amount appropriated for
1976 is then available to the Texas Youth Council; if it is
found not to exist, none of the appropriated funds for 1976
are available to it.
Both the rider and the Governor's letters to the Camp-
troller speak of the appropriation being contingent upon a
finding that a particular, singular fact exists. The Governor
has been given no power to find a fact relative to only a
portion of the item or to authorize the release of a part of
the appropriated funds upon finding the existence of a
different fact.
The next question is:
If the Governor must release all or none
of the appropriation, doea the finding
that the contingency has been partially
met or substantially met enable the TYC
to utilize the entire $4 million for FY
767
When an act of a public officer is capable of two
meanings, one #within his authority and one without, the act
should be construed to be lawful. Beard v. Marshall, 32
S.W.Zd 496 (Tex. Civ. App. -- Eastland9m, no writ). See
23 Tex. Jur.Zd Evidence S 82 at 123 et seq. Xere the ho=-
nor ham advised the*Comptroller on stationary bearing his
p. 3472
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The Honorable bane Denton - page 6 (H-822)
seal that 'the specified fatt has been sufficiently met to
authorize the Youth Council to utilize an additional $l,OOO,OOQ
in the 1976 fiscal year for the alternate care program."
The letter to the Comptroller can be considered the Governor's
certificate of his decision on the matter. -See Attorney
General Opinion H-573 (1975).
It is impossible to ascertain with complete certainty
whether the Governor's certification was intended to indicate
that the specified fact had been sufficie~ntlymet within the
meaning of the rider provision or sufficiently met within
his personal contemplation to justify no more than a further
one million dollar expenditure. The rider gives the Governor
only the option of releasing all of the funds or none of them.
Since the Governor is presumed to have acted within his
authority, the fact finding which he characterized as being
sufficient to permit the release of $l,OOQ,OOO probably would
be conotrued by the courts to permit the release end utilizatfon
of the entire appropriation item.
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SUMMARY
Where an appropriation item for the Texas
Youth Council has been made contingent
upon a determination by the Governor that
a single, specified fact exists, the Gov-
ernor's formal written advice to the
Comptroller that the specified fact has
been sufficiently met so as to authorize
the agency to utilize a part of the
appropriated funds probably would be
construed by the courts as a certificate
that the condition haspbeen satisfied
so as to make available to the agency
the entire amount appropriated.
-Very truly yours,
Attorney General of Texas
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p. 3473
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The Honorable Lane Denton - page 7 (H-822)
APPROVED:
Opinion cpmmittee
jwb
p. 3474