Untitled Texas Attorney General Opinion ( 1940 )

THEAITORNEY GENERAL OFTEXAS GEBALDC.MANN Aus~rlv 11. TEXAR I A-l-l-URN&Y c4ILCNJaRAL. Honorable George H. Sheppard Opinion No. O-2924 Comptroller of Public Accounts He: Authority of Governor to grant Austin, Texas deficiency appropriation to supple- ment contingent appropriation to Dear Sir: Labor Commissioner. We quote from your letter of Movember 20, 88 follows: "The current general appropriation bill appropriates for the Bureau of Labor Statistics: "'$lgOO.OO . . . for equipment, stationery, printing, postage, office supplies, telephone, telegraph, express and contingent expenses,' for the fiscal year ending August 31, 1941. "The rider to this general appropriation bill, a.8found at page 233 of the Act reads, a8 follows: "'It is further provided that, during any three month period, no department can expend more than one-fourth of the appropriations made herein for; (a) traveling expenses, (b) contingent expenses, (c) telephone and telegraph, (a) postage, provided that any unexpended balances from preceding quartere may be expended during subsequent quarters.' "The Bureau of Labor Statistics has spent one-fourth of the above mentioned appropriation before the end of the first three months of the fiscal year." Upon thie statement, you aak the opinion of this department upon the following question: "18 the governor authorized to grant a deficiency appropriation to the Labor Commissioner to supplement the above mentioned appropriation in such amount a8 is reasonably necessary to pay for extra help and mie- cellaneous expenses?" The Governor derives his authority to grant deficiency appro- priations from the provisions of Article 4351, which reads: "All heads of departments, manager* of State institutions or other persons intruded with the power or duty of contracting for supplies, or in any manner pledging the credit of the State for any deficiency that may arise under their management or control, shall, at least thirty bays -I . Hon. George H. Sheppard, page 2 (O-2924) before such deficiency shall occur, make out a sworn estimate of the amount neceesary to cover such deficiency until the meeting of the next Legis- lature. Such estimate shall be immediately filed with the Governor, who shall thereupon carefully examine the 6ame and approve or dieapprove the same in whole or in part. When such deficiency claim, or any part thereof, has been 80 approved by the Governor he shall indoree his approval thereon, designating the amount and items thereof approved and the items disapproved, and file same with the Comptroller; and the same shall be authority for the Comptroller to draw his deficiency warrant for so much thereof as may be approved; but no claim, or any part thereof, shall be allowed or warrants drawn therefor by the Comptroller, or paid by the Treasurer, unless such estimate has been so approved and filed. If there is a de- ficiency appropriation sufficient to meet such claims, then a warrant shall be drawn therefor and the same shall be paid; but, if there is no such appropriation, or if such appropriation be so exhausted that it is not sufficient to pay such deficiency claim, then a deficiency warrant shall issue therefor; and such claim shall remain unpaid until provision be made therefor at some session of the Legislature thereafter. The pro- visions of this article shall not apply to fees and dues for which the State may be liable under the general laws. When any inJury or damage shall occur to any public property from flood, storm or any unavoidable cause, the estimate may be filed at once but must be approved by the Gov- ernor as provided in this article." In our opinion No. O-2118 (copy of which we enclose herewith) we construed Article 4351. In that opinion we said: "Every head of a department, and every manager of a State in- stitution, perhaps without exception, is by law clothed with the power or duty of contracting (In the manner prescribed by law) for supplies, traveling expenses, and other things necessary to the proper administra- tion of the departmental or institutional affairs. . . 0" 91. . . The duty of maintenance and carrying on is imposed by the law and if the revenue appropriated to that legitimate and necessary end proves to be insufficient, it amounts to the casual deficiency con- templated by the Constitution and statutes." "An appropriation such as we are discussing is not the same as an appropriation for a purpose which may be accomplished within the sum appropriated therefor, like a building, a betterment and the like, since in a case of that kind the building or the betterment may be brought within the specific appropriation; whereas, such things as main- tenance, incidentals, including traveling expenses, postage and the like in their very nature are continuous and of daily necessity to the opera- tion of the State's affairs - the very functioning of the government. In the latter case the larger purpose of the Legislature is to authorize the incurring of such maintenance and incidental expensea." . - Hon. George H. Sheppard, page 3 (O-2924) It is our opinion that, upon proper showing under the provisions of Article 4351, that the amount available for expenditure during any quarterly period from a "contingent" expense appropriation will be insuf- ficient to defray the expenses to be paid from such appropriation, neces- sary to carry on the functions of the particular department, the Governor may authorize the issuance of deficiency warrants to supplement the amount available for contingent expenses for the particular quarter involved. The application to the Governor must be made before the deficiency is incurred, under the provisions of Article 4351. When the deficiency is authorized to supplement the contingent expenses available for a particular quarter, the deficiency will not be available for expenditure in another quarter. And, of course, a8 held in our opinion No. o-2118,the Governor may authorize only such expenditures as are necessary to be made to carry on the business of the Department until the next meeting of the Legisla- ture; so that, at all events, the deficiency allowance will not be avail- able for expenditure after the Legislature convenes. No opinion has been sought, and none is expressed, with refer- ence to specific fact questions which may arise in connection with a particu- lar deficiency allowance by the Governor or expenditures made thereunder. The above general rules, however, can doubtless be applied by you without difficulty, to such specific matters. Yours very truly APPROVED JAW 30, 1941 ATTORNEY GENERAL OF TEXAS /II/Grover Sellers FIRST ASSISTANT By /s/ R. W. Fairchild ATIORRRY GEWERAL R. W. Fairchild Assistant RWF:GO:IM