Untitled Texas Attorney General Opinion ( 1974 )

TEXE ATNBRNEY GENERAL
OF YIYEXAS
AURTIN. TEXAS 78711
January 16, 1974
The Honorable Raymond W. Vowel1 Opinion No. H- 211
State Department of Public Welfare
John H. Reagan Building Re: Availability of funds to
Austin, Texas 78701 establish a record .file required
by $11.17, Title& Family Code,
63rd Leg. and obligation of Dept.
of Public Welfare to carry out
pro,visions of the Code for which
there are no. appropriations.
Dear Mr. Vowell:
Your opinion request concerns the problem ‘of financing the program
assigned to your department under various provisions of Title 2 of the Family
Code, (Acts 1973, 63rd Leg., R. S., ch. 543, p. 1411).
Your first two questions concern $11.17 of the Code, which requires your
department to establish and maintain a central record file of suits affecting
the parent-child relationship. Subsection (c) of $11.17 provides:
“On the written request of a court or of an
attorney, the department shall identify the court
which last had jurisdiction of the child in a suit
affecting the parent-child relationship and give the
docket number of the suit, or state that the child
has not been the subject of a suit affecting the
parent-child relationship. The child shall be
identified in the request by name, birthdate, and
place of birth. The department shall transmit
this information within 10 davs after the dav the
request is received and may charge a reasonable
fee to cover the cost of this service. ‘I (emphasis
added)
p. 989
The Honorable Raymond W. Vowell, page 2 (H-211)
Your first question is whether the emphasized language. constitutes
an appropriation of the reasonable fee, if any, to your department, there
being no such “specific appropriation” in the portion of the ,Appropriation
Act applicable to your Department. See Article 8, $ 6, Constitution of
Texas.
In our opinion, the language does not constitute an appropriation. We
are not unmindful of the language in cases such as Pickle v. Finley, 44 S.W.
480 (Tex. 1898) and National Biscuit Company v. State of Texas, 135 S.W.2d
687 (Tex. 1940), that no specific words are necessary in order to make an
appropriation: that an appropriation may be made by implication when the
language employed leads to the belief that such was the intent of the Legislature:
and that, where an appropriation is made of all funds coming from certain
sources and deposited in a special fund for a de.s.ignated purpose, it is not
necessary for the appropriating act to name a certain or e,ven a maximum sum.
And see Attorney General Opinions C-248 (1964), V-887 (1949), V-895 (1949),
V-1255 (1951).
However, these authorities interpret statumry language clearly indicating
an intention to appropriate funds. For instance, in Attorney General Opinion
V-887, the following statutory language was involved:
“All license fees collected by the Commissioner
of Agrizlture under the provisions ,hereof shall be
placed in a special fund in the State Treasury to be
known as ‘The 2, 4-D License Fund, ’ which fund shall
be available to the Commissioner of Agriculture for
the purpose of defraying expenses which accrue in
the administration of the provisions hereof and same
shall be paid out by the State Treasurer upon warrants
based upon vouchers issued therefor by the Commis-
sioner of Agriculture. ”
On the other hand, in Attorney General Opinion H-154 (1973) this office
was “unable to find in Article 5521f, V. T. C. S., any language of appropriation”,
in a statute which provided:
p. 990
The Honorable Raymond W. Vowell, page 3 (H-21 1)
“(a) The board [Performance Certification Board]
with the advice of the department [of Labor Statis-
tics] shall establish a schedule of fees .to pay the
cost incurred by the department for the work
relating to the administration and enforcement
of this Act. . .
. , .
“(d) All fees shall be paid to the state treasury
and placed in a special account for the use of tlss
department in the administration and enforcement
of this Act. ”
The language in $11.17(c) of the Family Code does not even “earmark” the
funds when they are placed in the State Treasury and does not appropriate them
to your department expressly or by implication.
Your next question, contingent upon a negative answer to the first question,
inquires, “to what extent is the Department obligated.to implement this program,
for which it has thereby received no appropriation?” This question is similar
to your remaining questions and they will be discussed tog,ether.
Your next question asks:
“It has been estimated that the cost of establishing
and maintaining the central record file may be as
much as $250, 000 for the first year; yet, at no point
in the currently effective Appropriations Act has the
Department received any specific appropriation to
meet this expense. Therefore, we are requesting
your consideration and guidance with respect t,o the
following question:
” 1 To what extent is the Department obligated to
implement the program established by Section 11.17
of Title 2 of the Family Code when it has received
no specific appropriation in the currently effective
p. 991
The Honorable Raymond W. Vowell, page 4 (H-211)
Appropriations Act to meet the administrative costs
of the program and when no other source of appro-
priated funds may be available for this purpose? ’ ”
Section 34. 05 of the Family Code requires your Department to make
investigations promptly after receiving oral or written reports of xhild abuse.
The Legislature has not appropriated any moneys to the Department to meet
the administrative expenses of performing these functions. You inquire:
“To what extent is the Department obligated~to p,er.-
form the tasks mandated by Section 34,. 05 of Title 2
of the Family Code when it has received no specific
appropriations to meet the administrative expenses
of such activity? ‘I
All of these inquiries relate to the obligation of your Department when it
is burdened with a statutory duty but receives no specific appropriation to
carry out the mandate.
It is not necessary that appropriations be spedific with reference to each
such program. All three of these programs ar.e closely related to child
welfare and Item 34 B of the General Appropriations Act grants yo.ur department
funds to be expended for “child welfare services”. (II. B. 139, 63rd Leg.,
at II-45). We are of the opinion that such appropriation is sufficiently specific
to justify expending funds and using personnel in connection with any of the
programs and duties mentioned in your letter.
As to whether the amount of the appropriation is sufficient to enable you
to effectively establish and maintain these programs and to continue with your
present duties, we express no opinion.
SUMMARY
The provision of $11.17(c) of Title 2 of the Family Code,
authorizing the Department of Public Welfare to charge a reasonable
fee to cover the cost of providing information from a central records
file does not constitute an appropriation of such fees to the Department
p. 992
The Honorable Raymond W. Vowell, page 5 (H-211)
for that purpose. However, the appropriation for child welfare
services in the Appropriations Act constitutes an appropriation
to the Department for providing such services as well as for
establishing and maintaining the contemplated central records file
and for conducting the investigations of child abuse provided in
5 34. 05 of the Family Code.
Very truly yours,
A
Attorney General of Texas
DAVID M.KENDALL, Chairman
Opinion Committee
p. 993