Untitled Texas Attorney General Opinion

.
R-643, ,
’ 423
QFPPB:E 0P
THE Amom`` GENDERS
AUSTYX~ TEXAS
PRICE DANIEL
,..TTTO”NEY GEHERN.
Hon. D. W. Stakes
Cnqeral Man.3ger
Te:-asPrison System Re: Validity of emergency
Funtsvllle, Texas appropriation when con-
strued as authorizing
payment of clalms~whlch
arose while the Legls-
lature was In session
and prior to the ef-
fectlve date of ~theAct.
Dear Xr. Stakes:
Your letter of July 3, 1947, readsr
Qarly during the year,1947 It de-
veloped that certain appropriations, made
by the 49th.Leglslature for the support
and maintenance of the Texas Prison System,
would be exhausted before the end of the
fiscal year ending August 31, 1947. Since
the 50th Legislature was In sessionat that
time, a request was made for an emergency
approprlatQin on whtch to operate for the
balance of the year. For reasons u&n&m
to us ‘~ltwas not uatll May 12th, 1947,
that ihe emergency appropriation was’passed,
an3 signed by the Governor.. In the mean-
time’it was necessary to continue to place
orders’for certain items, such as food Sor
Inmates, ‘feed for livestock, 011, gasoline,
gas and electric services. In some cases
the mods’were delivered before the emergency
appropriation was made available and .ln
others not until afterward. There were bal-
ances In the funds at the ?lme the orders
were placed, but ln,.someaccounts the
previously exlstlngiorders would have over-
drawn them.
“When we requested ths emergency appro-
priation there were no act:ialoverdrafts
Stakes, page 2 (v-.376)
Don. D. 'rl,
but the proper Legislative Committees
were told it was a real emergency, and I
believe their intention was thet that ap-
proprlatlonwas to.ecover the entlre.need,
that in fact the 5uth Legislature was
simply supplementing the previous appro-
priations of the 4,9th,
"In order to clarify our situation with
the State Comptroller of Public Accounts,
I shall greatly appreciate your opinion
as to whether all of the purchases men-
tioned can be paid from the emergency ap-
propriation (in all accounts After the
orlglnal appropriations have been exhaust-
ed.)"
The emergency appropriation mentioned ln your
letter 1s Senate Bill 396, Chapter 191, Acts 50th Legls-
lature 1947q page 333 Vernon's Texas Session Law Ser-
.' vice. It reads as follows:
..
"An.~ActmakSng an emergency appro-
priation for the Texas Prison System;
ana declaring an emergency.
vBe it enacted by. the Legislature of the
State of Texas: .
"Section I. There is hereby approprl-
atedto.the Texas Prison System.out of the
General Revenue Fund lnthe State Treasury
not otherwise appropriated, the sum of
Three Hundred Forty-nine Thousand Five
Hunarea($349,500.00) Dollars, or so much
thereof as may be necessary to supplement
the appropriation made forothe said Texas
Prison System by the 49th ~Leglslature;said
appropriation to be for the remainder of
the present fiscal year ending August 31,
1947, and to be In all things subject to
the general provisions and riders attached
to the General De artmental Appropriation
Bill, Acts 19459 fi
9th Legislature, Chapter
378; the purposes for which this approprl-
atlon Is made and tne appropriation Items
supplemented by this appropriation being
as follows, to-wit:
Hon. D. W. Stakes, page 3 O-376)
"APPROPRIATION BUDGET
NUMBER REQUIREMENT
68. Groceries, mediral sup-
plies, feed and seed
Total J-909 ........$ 190,000.00
70. Maintenance and repairs
of equipment (including
gas, 011, tires, etc.)
and repairs to bulld-
ings
Total J-9l.l .....*0. 12,ooo.oo
7i. General support and maln-
tenance, including office
supplies and expenses,
rents, heat, light,wter,
power, Ice, postage,
telephone, telegraph,
freight, express, dray-
age, per diem of Board
Members, travel
expense, transporta-
tion of prisoners,
rewards, Inquests,
~lnsurance,bond premiums,
cleaning and janitor
supplies, mlscellane-
our expense
Total J-912 ...:.... 50,wo.00
.. ~72. Bew equipment (J-913) , 10,OGG.GO
i ‘jpab.rr.
Industrial revolving
,..
i fund,(9/1/46) cellblock
construction
Tgtal ............. 87,500.OO
GRAI4DTOTAL . . . :.. . . . .$ 349,500.oo ,I
>~?,.~. YSectlon 2.. The supplemental approprl- :':
'~
.._ a&&he~eln made shall be e'xpended In all
~. ~&lngs 1Kaccordance with the provisions of
,., .,
: the'~appr$prlatlonblli and In accordance'with- :;.
5&e orl&hal approprl4tlon made for the sev-~.
efatl:
1tWW supplementad by this approprla-
B&i&
"Section 3. The fact that the Texas
.~ Pr,lsonSystem has practically exhausted the.
Hon. D, W. Stakes, page 4 (v-376)
appropriations made for the purposes pro-
vided in this Act. and the necessity for an
immediate appropriation to supplement the
same, create an emergency and an impera-
tive public necessity that the Constitution-
al Rule requiring bills to be read on three
several days in each House of the Legislature
be suspended, and same Is hereby suspended,
and that this Act shall take effect and be
In force fromand after Its passage, and
it is so enacted.
"Passed the Senate, 4pril 29, 1947:
Yeas 27, Nays 0; passed the Rouse May 1.
1947: Yeas 117, Nays 8.
Approved May 12, 1947
Effective May 12, 1947.-
You inquire only about claims in excess of
appropriations which were incurred "early during the
year 1947" and prior to May 12, 1947, when the sup-~
plemental appropriation became effective.: Since no
applicationwas made to the Governor for approval of. :
deficiency warrants pursuant to Article 435l V. C. S.,~,
and,~sinceyou~apparently do not intend to submit
claims which were incurved prlor,to January 14 1947,
the date onwhich the 50th Legislature convened,to :
the Comptroller for payment out of the supplemental
appropriation bill we will not pass on thenvalidity
of such claims at .his
t time. The sole question here,
is whether'claims for items "such as foods for in-
mates,.feed for livestock, oil, gasoline, gas and
,electrlcservices ",which were incurred between Jan-
uary 14, 19479 when the Legislature met, and May 12,
1947, the effective date of the supplemental appro-
priation, can be legally paid out of such approprla-
tion. We answer this inquiry in theaffirmative.
Our ruling,and the reasons.-thereforfollow:
~. There are two controlling law questions
involved. The one has.to do with aninterpreta-
tion of the supplemental appropriation bill Itself
to determine whether the Legislature intended for it
to cover expenses incurred prior to its effective date.
The other question is whether the Legis-
lature could by emergency appropriation passed dur-
ing the biennium lawfully authorize an expenditure
for Items "sudh as foods for inmates, feed for llve-
stock, oil, gasoline, gas and electric services",
Hon. D. Wi Stakes, page 5 (v-376)
which were ,usedwhile the Legislature was in
session and before the emergency appropriation
became effective.
We will first discuss the supplemental
appropriation bill, quoted above. It recites in
Section 1 that the amount appropriated is "to sup-
plement the appropriation made for the said Texas
Prison System by the 49th Legislature, said appro-
priation to be forShe remainder of the present
fiscal year ending August 31, 1947, and to be in
all things subject to the general provisions and
riders attached to the General Departmental Appro-
priation Bill, Acts 1945, 49th Legislature Chap-
ter 378." Reference to the original bill (p, 907,
General & Special Laws, 49th Legislature, 1945)
shows that It contains the same five Items under
appropriation numbers 68, 70, 71, 72 and rider, which
are included in the supplemental appropriation. The
emergency clause on the Supplemental Appropriation
A& recites "the fact that the Texas Prison System
has practically exhausted the appropriations made for
.the,purposesprovided In this Actoat'It is perfectly
obvious ,that the Legislature intended for the Supple-
mental Bill to be an addition to the original appro-
priation, without any hiatus,intervening. In
Commonweaith vs, Liveright (Pa.) 161 P. 697,~ the court
said:
II
. An appropriation does not
. 0 0
speak from'the date of approval of the
measures, but from a consideration of that
appropriation and other appropriat.lonsdur-
ing the same biennium."
See, also, Graham vso Childers (Gkla.) 241 Pact.178.
Article 4351 V, Ci S. provides for obtain-
ing deficiency warrants from the Governor "until the
meeting of'the next Legislature." On March 26 1947,
the Legislature had appropriated~$138,241.47 #to pay
the deficiencyappro riations granted by the Governor,
~pursuantto Article t351 of the Revised Civil Statutes
of the State of Texas, 1925, prior to January 1 1947":
g;B. 228, ch. 57, Acts 50th Legislature, R.S. 1447,~.
. There were no claims for the Prison System lnclud-
ad In this deficiency appropriation. Considering the
supplemental appropriation for the Prison System, above
quoted, and the deficiency appropriation bill together,
Hon * D, W, Stakes, p.ige6 (v-376)
we find nothing to indicate that the Legislature knew,
of any deficiency claims incurred by the Prison System
prior to January 1, 19*t7?or that it intended for any
of the money appropriated in either of said bills to
be used for that purpol;e, We, therefore, interpret
the supplemental appropriation bill as covering the
period from January 14th , 1947, when the Legislature
convened, to Au:_ustjist, 1947, the end of the blen-
nium,
We next consider the power of the Legisla-
ture to enact an emergency appropriation having a
retroactive effect, It is well settled ~that"the
State Legislature may exercise all the legislative
powers of the peopleY :;ubjectonly to the limitations
expressed In the Constitution of the State and of the
United States," .CharlesScribner's Sons vs+ Marrs,
Tex, Sup. Ct., 262 s,w..722; Conley vs. Daughters of
the Republic, Sup. Ct..,156 S.W,,197.
We have concluded that Section 49 of Article
III, Texas Constitution, is not applicable here,. The
moneys spent by the Prison System in excess of the sums
appropriated In the regular departmental,appropriatlon
blllze not "debts" within the meaning of this,section
of the Constitution. This section refers to "casual
deficiencies of,revenue" and not to casual deficiencies
ln:approprlations, Terre11 vs. Middleton, 187 S.W.
.-367,, error refused; Attorney General's Opinion dated
February 21, 1923 to Hon. J. E. .Quaid and signed by
L. C. Sutton Assistant Attorney General,being No.
2482, Book 58, p. 203 of the Attorney General's
Opinons for 1922 - 1924. See, also, concurring opln-
ion of Justice Hawkins In Terre11 vs. Middleton,
.Tex, sup. 191 S.W. 1138, at 1148, et seq-
We have concluded that Section 44, Article
III, Texas Constitution, is not applicable here.
TNs sectl.onprohibits the Legislature from appro-
priating "any amount of money out of the Treasury
of the State, $0 anv individual, on a claim,~real or
pretended, when the same shall not have been provld-
ed for by,pre-existing law." The Supplemental Appro-
priation quoted above 1s not made to "any individual"
within the meaning of this section of the Constitution.
Austin National Bank vs. Sheppard, Tex. Sup. 71 S.W.
(2d) 242, 245, The supplemental appropriation Is
made "to the Texas Prison System" which is a State in-
stitution and not to an "lndlvldual*', This distinguish-
Hon. D. WI Stakes, page 7 (v-376)
es this case from the case of Fort Worth Cavalry
Club vs. Sheppard, Tex. Sup., 83 S.W. (2d) 660,
where the appropriation was made to an individual.
If,it Is contended that Section 44, of
Article III, is applicable to the supplemental ap-
propriation bill, the answer is that this appropriation
is "provided for" by the mme "pre-existing law" which
supported the regular Departmental Appropriation Bill.
That "law" consists of'Section 58, Article XVI, Texas
Constitutionad Articles 634 and 6166g, V. C. S.~
Section 16 of Article I? Texas Constitution,
provides:
"No bill of attainder,= post facto
law, retroactive law, or any law impalr-
-1ng the obligation of contracts, shall be
.made*"
This provision prohibiting the enact-
~ment of a."retroactive,law" was intended to protect
vested rights .of third parties. 9 Tex. Jur. 536;
537. Where there are no rights of third parties ln-
valved,,the Legislature has the same power to enact'
retroactive laws as it has to enact prospective laws.
.Dallas County vs. Lively, 106 Tex. 364 167 S.W.
219; Blomstrom vs. Wells, Clv. App., 339 S.W. 227,
writ of~error dismissed; Anderson,County Road Dls-
tri,ctNo. 8 vs. Pollard, Tex, Sup,, 296 S;W. 1062. We ;
have~concluded ,that Section 16, of Article I, of the
Texas Constitution 1s~not applicable to an emergency
appropriation such as we have here.
The Constitution authorizes the Legislature
to make emergency appropriations out of current re-
venue to take care ~of the current expenses of the
biennium.
~Sectlon 5, of Article III, Texas Constitu-
tion, provides In part as follows:
"The Legislature shall meet every two
years at such time as may be provided by
law and at other times when convened by the
Governor d When convened in regular session,
the first thirty days thereof shallte devot-
ed,to the introduction of bills and resolu-
tions, acting upon emersency annrouria-
1
Ron, D. W. Stakes, page 8 (V-376)
tlons, U O O O " (Emphasis added)
Section 49a of Article III, of the Texas
Constitution, provides as follows:
"It shall be the duty~of the Comp-
troller of Public Accounts In advance of
each Regular Session of the Legislature
to prepare and submit to the Govenor and
to the Legislature upon its convening a
statement under oath.showing fully the
financial condition of the State Treas-
urv at the close of the last fiscal DeriOd
and an estimate of the DrObabh? receiuts
and disbursements for the then current
fiscal year.J' (Emphasis added).
Section 6, of Article VIII, .Texas Consti-
tution provides, In part:
,I. 0 . . nor shallmy approprlatlon
of money be made for a longer term than
two years, except by the first~Legislature
to.assembleunder this Constitution, which
may make the necessary appropriationsto
carry on the government until the assemblage
of the sixteenth Legislature,"
Article 12, V. C. S. provides:
"The fiscal year of the State shall
terminate on the thirty-first day of
August of each year, and appropriations of
the State government shall conform thereto."
After 4ugust 31st of the last year ~of'ablen-
nium the Legislature would have no authority to make '.
emergency deficiency or supplemental‘appropriatlons
for the fiscal year just ended. If It undertook to .do
so by an appropriation bill, the appropriation bill
would be invalid in so far as it conflicted with
Article 12,-V. C. S. Moore vs. Sheppard, Tex. Sup.
192 E&W. (2d) 559. At the Session following the close
of a biennium the Legisla'ure can only act on claims
of individuals which are provided for by pre-existing
law, During a biennium, however, the Legislature has
full authority to appropriate within the current re-
venues all of the money which it finds is necessary
Hon. D. W. Stakss, page 3 V-376)
and required for the efficient maintenance and op-
eration of the several State institutions during
that biennium.
Subdivision 14(b) of the General Provi-
sions of the Departmental Appropriation Bill pass-
ed by the~49th Legislature, 1945, page 945, reads:
nThe approprjations herein provided are
to be construed as the maximum sums to be ap-
propriated to and for the several pruposes
named herein, and the amounts are intended
to cover, and shall cover the entire cost
cf the respective items and the same shall
not be supplemented from any other sources;
provided, however, that the provisions and
restrictions.herein shall not apply to the
State Commission for the Blind; and, extent
as otherwise provided, no other expendi-
tures shall be made, nor shall any other.
obligations be incurred by any department
of~this State, provided, however, that
nothing herein shall prevent any depart-
ment head from paying less than the.maxi-
mum amount set forth herein for any
salaried positions." (Emphasis added).
The language "except as otherwise provided"
as used in subdivision 14(b),,supra, includes the me-
thod .of supplementing an appropriation as. provided by
Articles~4351 and 43!jla,V. C. S., as wellas by the
supplemental appropriationat. These two methods,
however, a.re the only means of supplementing a
'. General Appropriation Bill.
The goods and services used by the Prison
System during the time that the Legislature was.in
sesslonznd before the effective date of the Supple-
mental Appropriation Bill which were not paid for out
of the general appropriat1on, were in effect advanced
to the Prison System. The Prison Board and the Board
of Control on behalf of the Prison Board, had no
authority under subdivision 14(b) of the Departmental
Appropriation Bill, above quoted, to bind the States
for the payment of moneys in excess of the sums.appro-
prlated. Those who furnished goods and services to
the Prison System during this interval did so at
their own risk. It is our considered opinion, how-
ever, that the Legislature had the power during the
.
Hbn. D. Wb Stakes, p3y.e16 (v-376)
biennium to provide money to pay for goods and ser-
vices furnished the Prison System during that per-
iod, whether they were furnished before orafter the
effective date of the supplemental act.
The holding in this ~opinion does,not mean
that the Legislature, by an emergency appropriation,
may grant "extra compensation" "after service has been
rendered or a contract has been entered into, and per-
formed In whole or in part," Sections 44 and 53,
Article III, Texas Constitution. Nichols vs. State
(Cl-?.App.) 32 S.W. 452; State vs. Holdeman, 163
S.W. 1020; Attorney General's Gpinion No. o-1750.
It does.mean, however, that within the
biennium the Legislature may supplement an approprl-
ation in the same manner and with the same authority
as It could have passed the regular appropriation at
the beginning of the biennium, provided that the
moneys are not to.be used for the purpose of paying
"extra compensation" "after service has been render-
led or a contract entered into, and performed in
whole or in part,! within the meaning of Sections
.44 and 53. Article 111,~Texas Constitution; Dallas
County vs- Lively, 1.06 Tex. 364 167 S.W. 219;
Graham vs. Childers (Okla) 241 sac. 178, 182. In the
last cited case the plaintiff soughtin injunction
against the State Treasurer to restrain him from pay-
ing out of a supplemental appropriation for text
books which were,received.by the State but not paid
for out of the regular appropriation, Inholding
that the supplemental appropriation was valid.and in
denying the injunction the court said:
"The mere fact that the Legislature
perhaps from lack of proper statistical In-
formation, failed to make an appropriation
sufficient ~to carry out this purpose would
in no wise preclude it from doing so itrnit
can be done within the constitutionai -
tations at a subseouent session held durlnq
the b-1 term. The money appropriated
was intended to be spent in supplementing
or&ding to the former appropriation what
the facts demonstrated was necessary to
frropirlYcarry out +ifiepurposes ofthe orl-
glnal act. e e .
Hon. D. W. Stakes, page 11 (V-376)
"Plaintiff acain says theazt of the
state superintendent was in fact an attempt-
ed purchase of books in excess of the appro-
priation, and the method called a loan was
a subterfuge. Suppose this be conceded.
We are notto condemn or condone, except
in so far as the law drives us. It was,
certainly the intent of the original bill
that the necessary books be supplied. They
were supplied, and even should It be conceded
In doing so the zeal of the officers led
them beyond the pale of the then legal ap-
propriation, there was no binding obliga-
tion on the 'sovereignLegislature to fol-
low such officers and make it good. But,
if, on the other hand, the Legislature
saw fit t0,d.oso, and authorized the pay-
..ment,and its act did not step beyond the
constitutional limits, the courts cannot
strike down its deliberate enactment.
Federation v. Salt Lake County, 22 Utah,
6 61 P. 222< New Orleans vi Clark, 95 U.S.
6b. 24 L. Ed. 521: Cuilford v. Cornell.
18 Barb. (N.Y.)-615; Lycoming v. Union,'
15 Pa. 166, 53 Am. Dec. 575; People v.
Burr, 13 Cal. 343; Black Con. Law.,135;
EOOJO;; c,“. Law, 466. See, also, Cayuga
. State, 112 Misc. Rep. 517,
182 N. Y. S. 646: Osweeo & Svracuse R. R.
Co,~vi State, 226 N. YT~351,-124 N. E. 8;
Ulster v. State,. 177 N.'Y. 189, 69 N.E.
370.“.
This is merely another way of saying that
"what the Legislature could havealthorlzed in the
first Instance it can ratify, If at the time of'
ratification It has the in$tlal authority to
euthorize.ta Anderson County Road Dls~trlctNo. 8 vs.
Pollard,.Tex. Sup., 296 S.W. 1062, 1065.
We cannot, of course, give blanket appro-
'val to all of the claims that may be presented for
payment out of each of the five items listed in the
Supplemental Appropriation Bill, quoted above. It
will be necessary for the Comptroller to examine each
claim individually in the light of this opinion to
determine whether or not it can be paid. NO ~dis-
tin&ion is to be made between claims that arose be-
fore and after May 12th, so long as they arose after
. .
Hon. D. W. Stakes, page 12 (V-376)
the Legislature convened on January 14, 1947, and be-
fore Auyst 31, 1947, the end of the biennium. .
The answer to the second UeStiOn in
Attorney General's Opinion No. G-4815 is hereby
overruled.
The five items of appropriation
listed in the Supplemental Appropriation
Bill for the Texas Prison System which
was passed by the 50th Legislature and be-
came effective on May 12, 1947, may be used
to pay defi.clenciesin the same items in
the regular biennial appropriation bill
for the Prison System, where such ex-
penses were incurred -Ifterthe Legisla-
ture convened and prior to the end of
the biennium. Ch. 191 S.B. 396, Acts
50th Legislature (194h p. 333.
Yours very truly,
ATTGRNEY GENEFlALOF TEXAS
FD:mw
ATTORNEY GENERAL