Untitled Texas Attorney General Opinion ( 1972 )

Hon. Harry P. Burleigh Opinion No. MY 1141
Executive Director
Water Development Board Re: Construction of Article
P.O. Box 12386, Capitol Station 6252-lla, V.C.S., re-
Austin, Texae 78711 lating to programs for
training.and education
Hon. James U. Cross of State administrators
Executive Director and employees.
Texan Parks L Wildlife Dept.
John H. Beagan Building
Auatin, Texar 70701
Gentlemen.:
Your requests for an opinion on the above subject
matter ask the following questions regarding Section 16 of
Article V of the current General Appropriation Act:
"1. Does Article V, Section 16 of the
197.1General AppropriationAct (quoted above)
require the approval of the Governqr for the
expenditure of state funds for any program
of education, or does it'apply to other mat-
ters such as,membership in, or noneducational
activities sponsored by, professional groups
and organizations?
: “2. If Article V, Section 16 of the 1971
General Appropriation Act does 80 apply to
educational and training programs, would it
nevertheless be necessary to obtain the Gover-
nor's approval of specific items of expenditure
in addition to his approval of the regulations
promulgated pursuant to the State Employees
Training Act of 19693
-5552-
Hon. Harry P. Burleigh, Bon. Jamee’U..Croaa,~page 2. j&4-1141)
“3. Is the Comptroller authorised.to
approve payment for dues and fees for this
Department incident to joining or partici-
pating in an organization when approv~alhas
been obtained from the Governor previously
as required by Section 16, page V-42 of the
Appropriations Bill even though the,Governor's
approval was not additionally obtained prior to
to the beginning of the normal membership
period of such organization?"
Sections 2, 3, 4 and 5 of Senate Bill 653, Acts of
the 61st Legislature, Regular Session, 1969, Cahpter 283, page
849 (aodified as Art. 6252-lla, V.C.S.) provides:
"Sec. 2. The Legislature finds that.
effective state administration is materially
aided by program for the training and educa-
tion of state administrators and employees
and that public moneys spent for these pro-
grams serve an important public purpose.
"Sec. 3.. A state department, institu-
spropriate by
or agency, it may expend public funds to piy
the salary, tuition anU other fees, travel
and living expenses, training stipend, train-
lng materials costs and other necessary expen-
ses of th 1natructor, student, and th
zipant Tn the training or educatioi pzig:z.
A department, institution, or agency may enter
into an agreement with another state, local, or
federal department, institution, or agency, in-
cluding .a state-supported college or university,
to present a training oreducat.ional program for
its administrators and employees or to join
in.preeenting such a program. Among the pur-
poses,that may be served by these training.and
educational programs are preparation to deal
with new technological and legal developments,
development of additional work capabilities, and
increasing the level of competence.
-5553-
Hon. liarryP. Burleigh, Hon. James U. Cross, page 3. (M-1141)
*Sec. 4. Public funds may be expended
by the department, institution, or agency for
the training or education of an administrator
or employee only where the training or educa-
tion is related to the current or prospective
duty assignment of the administrator or employee
Where.the trainins or education is so related.
the department, institution, or agency may ~'
make the administrator's or employee's
sent duty assignment, in part or in whof=-
e,
attendance at designated trainina or educa-
tion.programs. -
no public funds shall be expended under such
regulation, until the regulation is approved
in writing by the governor." (Emphasis added.)
We note that the foregoing provisions do not contain
an appropriation but.that they do constitute pre-existing law
for the appropriation and expenditure of moneys for the purposes
contained in SectPon 16 of Article V of the current General
Appropriation Act. The following restrictions on the expendi-
tures of funds appropriated in the General AppropriationAct
are contained in,its Section 16 of Article V; they read as fol-
lows:
"Restriction on Registration Fees. None
of'the funds appropriated in this Act shall
be used to pay dues, registration fees or any
kind of similar expense incurred in joining
or participating in any type or organization,
aesbciation or society-without prior written
Droval of the Governor. Such requests and
action taken shall be filed with the Leais-
lative Budget Board." (Emphasis added.i
-5554-
Xon. Harry P. Burleigh, Hon. James U. Cross, page 4. (M-1141)
We construe this rider in the General Appropriatior.
Bill to have the effect of giving a continuing arbitrary veto
power to the Governor over all expenditures for dues, regis-
tration, or other similar expenses related to educational and
training programs authorized by Article 6252-lla. This, as
hereinafter explained, the Legislature could not legally ace-
compliah under the Constitution and laws of this state. It
could, however, legally provide that each statement oi ex;;endi-
ture be filed as a matter of record with the Legislative Sad-
get Board for informational and budgetary purposes.
The rider, insofar as the Governor',6approval is
concerned, delegates to him the arbitrary power and unlimitrd
discretionary decision as to whether a state department or agetzq
can provide training and education for its administrators and
employees, with public funds duly appropriated for such purposes
including dues, registration fees, or similar expenses. We
must therefore hold that the rider, to the extent of requizi::,
the Governor's approval, is invalid and void. Rules of con-
struction applicable to statutes generally apply to appropria-
tion bills, which are to be construed in connection with other
legislation concerning related matters and with relevant con-
stitutional provirions. 81 C.J.S; 1225-1226, States, Sec. 166,
and authorities there cited.
The office of Governor does not exist by virtue of
the common law but is a creature of state constitutions. The
Governor has no undefined authority: he has no authority not
committed to him by the Constitution and statutes. Calvert v.
Adams, 388 S.W.Zd 742 (Tex.Civ.App. 1965, rev. on other grds.,
396.W.Zd. 948).
The only authority of the Governor to exercise a
substantive veto power over legislation or items of approprii.-
tion is clearly set out in Article IV, Section 14, of the
Constitution of Texas. Where the Constitution has spokn
and preempted this matter, the Legislature is without power
either to add to br detract from this constitutional functlcn.
In exercising that veto power, the Governor is exercising ii
legislative and not an executive or judicial function. He
has only such power as the Constitution confers upon him;
he cannot disapprove of, certain portions of a bill which are
not items of appropriation, and approve the remainder. E'LAlmor
v. Lane,:104 Tax. 499, 140 S.W. 405 (1911); Annotation, =R.
640,d cited cases; 16 C.J.S. 617, Const. Law. Sec. 138, n. $1;
81 C.J.S. 1220, States, Sec. 164, n. 55; and Attorney Ger~cr~l
Opinion No. V-119.6 (1951).
-5555-
. 4
Ron. Harry P. Butleigh, Bon. Jamer U. Cross, page 5. (M-1141)
Aside fromthe constitutional aubstentive veto of
the Governor granted'in Article IV, Section l4;there is no
other authority provided for him to have a continuing aub-
stantive veto item over the expenditures of appropriated
items, such as registration fees, dues, or any other items.
The substantive and discretionary decision to expend appro-
priated funds for these appropriated purposes is a matter
reserved by law to the various state departments and agencies,
and an attempt by the Legislature to delegate to the Governor
the power to disapprove or 'veto such expenditures and at
his own arbitrary discretion, is illegal and.unconstitutional,
as hereinafter shown:
It is well settled in this State that a rider attached
to a general appropriation bill cannot,repeal, mogify, o:.amend
an existing general law. State'v. Steele,'57 Tex..203 (1082);
Linden v. Fin1 , 92 Tex.'a51 49 W 5?0 (1899); Moore v.
Sheppard, 144 < 537,. 192 S:W.tidS;59 (1946).
This does not mean thata general appropriation bill
may not contain general provisions and details limiting and
restricting ~the us8 of'ftindstlxmeinappropriated.if the provi-
sions are necessarily connected with and incidental to the
appropriation and use of funds and if they do not conflict
with or amount to general legislation. Conley v. Daughters
of the Republic,,106 Tex. 80, 156 S.W. 191 (1913). It is noted,
however. that xn that case the aueetions nresented were not
the eamk'aa are here presented &d the court did noterule on
the ieeuee'with which WC are naw confronted. Since the rider
delegates to the Governor a substantive, discretionary veto,
the rider amounts, in our opinion, to general legislation in
the appropriation bi.11 and is thus unconstitutional and in
violation of Article III, Section 35, Constitution.of Texas.
See Attorney General Opinion Nos. V-1253 (1951);WW-294 (1957),
and W-310 (1957).
We ~find no Texas court decision directly on this
point. However,.the Supreme Court of Oklahoma has based its
decision in two cas8s aquarily on the proposition that the
Legislature may not constitutionally enact a law to require
the Gov8mor'a subsequent discretionary approval or disapproval
to be obtainad for the.expenditure of funds authorized by an
appropriation by the Legislature. The Court held that dis-
approval by the Governor was tantamount to reduction of an
-5556-
Hon. liarryP. Burleigh, Hon. &es U. Cross, page 6. (M-114;j
appropriationwhich was prohibited by its State.constitution.
Our Texas Conatitution contains the same prohibitions in
slightly different wording.1 The Oklahoma Court held:
*Had the Governor attempted to reduce
the amount of the appropriation.made for the
use of the Corporation Commission,~his action
.would have been ineffective under the provi-
.sions of our Constitution. The Legislature
is without authority of law to confer upon
the Governorthe power to reduce the tiount
of an item of an appropriation. It .cannot
authorize him to do indirectly wliathe is
prohibited by the.Constitution ,frondoi.ng
directly."
1Our Texas Constitution, Art. ~IV, Sec. 14, reads, in
its relevant portion:
*...If any bill presented to the Governor con-
tains several items of appropriation he may
object to one or more of such items;and ap-
prove the other portion of the bill...."
The related provisions of the Constitution of Okla-
homa upon which ~the Supreme Court of that State
based its decisions were:
(1) Art. 5, Sec. 56, which in hitsrelevant
portion read, "The general'appropriation bill
shall embrace nothing but appropriations for
the expensee of the executive, legislative, and
judicial departments of the State, ....". (27,
p.za 617, 6201 and,
(2) Art. 6, Sec. 12, which in its relevant part
read, "Every bill passed by the Legislature,
making appropriations~.ofmoney embracing distinct
items, shall, before itbecomes a law, be pre-
sented to the Governor; if he disapproves such
bill, or any item, or appropriation therein con-
tained, he shall communicate such disapproval,
with his reasons therefor, to the house in which
the'bfll shall have originated, but all items
not disapproved shall have the force and effect
of law according to the original provisi.onscf'
the bill."
Hon. Harry P. Burleigh, Hon. J(UDPI, V. wLYlr, =-.- ._
State v. Carter, 27 P.2d 617 (Okla.Sup. 19,331 (at
p. 626). Fhi h laing was followed and reaffirmed in State
v. Carter, l.0:P(I2d518 (1940) by the same Court. -
In effect, -giving the Governor of Texas a statutory
authorization to approve or disapprove an expenditure which
had already beep, appropriated would be a second veto privilege.
Our Texas Constitution, like the Constitution of Oklahoma,
prohibits the Governor from having more than the one veto pro-
vided for .in Article IV, Section 14, of the Texas Constitution.
We are aware that the decisions of the courts of
last resort of some States have made declarations that their
state legislature might constitutionally subject the expendi-
ture or'payment of appropriated money to the approval of the
Governor or other state officer who is otherwise without oop-
stitutional authority to approve or disapprove expenditures.
42 Am.Jur. 752, Public Funds, Sec. 50 (copyri'ht' 1942), and
91 A.L.R. 1511-1514. Hwever, we have carefu9ly considered
all the cases cited in these texts , and find th t none of them
base their decision on this proposition of law.9 In view of
;2Rxamplee are: (1) State v. State Board of Finance,
367 P.2d 925 (N.Mex.Sup. 1961). At p. 929 the state-
ment is made that the executive may-control expendi-
ture of appropriated funds, but the holding in the
case is that the " ...deIegaticn rust fail because
no standards have been provided..\." (p. 932).
(2) In Sellers v. Frohmiiler, 24 P.2d 666U4riz.
Sup. 1933).approval of the authority is stated at
p. 668, but thendecision of .thecourt is grounded
on the proposition that the authority granted by
statute was unconstitutional because it was genera1
legislation in the general appropriation bill (p. 669).
(3) In People v. Tremaine, 168 N.E. 817 (Ct. of App.,
N.Y. 1929, Ct. of last resort) the Court held that
statutory appointment of membere of the-legisla-
ture to a committee which had certain approval
powers over expenditure of appropriated funds, was
void.
(Footnote 2 continued on following page.)
-5558-
hon. Harry P. Burleigh, lion.James U. Cross, page (1. (M-rlili
a clear decision 'of our Texas Courts3 and the square hol.Xngs
of the
. Oklahoma
_ Supreme Court
. ._ in construing its state cocstia~
tutional provisions so similar to those of our own State, ac.d
in the absence of any authority to the contrary, we fo1~tv.TtC-
decisions of Oklahcanaand the weight of authority. As state3
in 42 Am.Jur. 752, supra, with reference to various attrmpt;
to subject the expenditure of appropriated money to the apprc
val of the governor or other officer, "in most =ases...tc:
courts have held them invalid...".
In.answer to your first question, it is our ti;Liiioz
that Section 16 of Article V, of the current General Approprii
tion Act is illegal and invalid to the.ext8n.tthat it requires
the Governor's approval for expenditure of state funds for ani
program requiring the use of funds appropriated'for dues
tration fees or membership fees. The Governor of Texas l!~a~"~~'
(Footnote 2 continued)
This case further holds that those members of the
Legislature hold a separate office of appoin"Jnent
by the Legislature which conflicts with their of-
fice.as legislators because it'is ehblly unrelated
to their legislative duties. The effect of the
Governor's membership on the committee was not con-
sidered in this context, but we do not discern why
he also was not given certain duties in irreconcili-
able conflict with his duties as governor. On this
ground his appointment likewise would be unconsti-
tutional'. The concurring opinion (p. 82'5)maket
further declarations to the effect that tha Govti;rncr
would act as an administrative officer (duties) ;ZI
conflict with the duties of the state adxiniatra-
tive officers to whom the funds were appropriated!
3We~consider several of the statements in Falmoz;-
v. Lane, 104 Tex. 499, 140 S.W. 405, supra, par-
'-1~ at pp. 411-412, as strong declarations
in support of our position, but the holding in
that case was on another ground.
-5559-
Hon. liarryp. eutlafgh, non. Junttl U. ~dro8avpage 9 (M-1141)
disoretion to disapprove or veto the requested expenditure
asked for by a State agency under Section 16 of Article V of
the current General Appropriation Act; nor does this Section
16 apply to the expenditure of appropriated funds for educa-
tional and training programs not requiring the payment of dues,
registration fees, or similar expense.
In view of our answer to your first question, your
second question in effect becomes moot. Since the Governor
has no authority to disapprove the expenditures in question
in Section 16 of Article V of the current Appropriation Bill,
it is only necessary under that rider to file your expense
statement with the Legislative Budget Board for its information
and subsequent budgetary considerations.
In answer to the third question, our opinion is that
the Comptroller is authorized to approve payment for dues and
fees for a State Department incident to joining oreparticipat-
ing in'an organieation without the above discussed Governor's
approval contemplated by Section 16 of Article V of the General
Appropriation Bill, and without regard to whether the expendi-
ture is made after the beginning of the normal membership period
of such organizition. Section 16 neither expresses nor neces-
sarily implies that the membership must occur or that the ex-
penditure must be made prior to the beginning of the organiza-
tion's membership period; nor do we find any other law which
makes this requirement.
The Comptroller's duty is ministerial only, and he
~muet issue his.warrant in payment of the legal expenditure
when the claim is made pursuant to the appropriation. Attorney
General Opinion No. C-722A (1966). Fulmore v. Lane, 104 Tex.
449, 140 S.W. 405-406 (1911). The approval of the Governor
is not required as we have so held herein, and it may not be
required bythe substantive determination to make the expendi-
tures left by the statutes to the sound discretion and judg-
ment of the state.departments and agencies. In this connec-
tion, you have stated:
"It is not possible to identify all value-
able opportunities fdr membership and participa-
tion prior to the beginning 6f their current
membership period nor to anticipate when new
ones will occur. If use of appropriated funds
under the provisions of Section 16 is to be ad-
ditionally contingent upon approval by the
-f&60-
. .
Bon. Barry P. Bukeigh, Hon. James U. Cross, page 10. (M-11411. *
Governor in 'advance' of the beginning of
the'normal membership period of the organi-
sation, society, or association, the State
of Texas vi11 be denied substantial benefits
it would have'derived from professional en-
hancement of our technicians and specialists
through their relatfonehipe with the ecien-
tific and ,profeesionalcommunity."
Neither the Governor nor the Comptroller is charged
with any duty to oversee, supervise or veto the above determind..
tion to make the expenditures by the etate.departmente and
agencies, and we must therefore answer your third question in
the affirmative.
SUMMARY
----we-
(1) Section 16 .of Article V of the cur-
rent General Appropriation Act insofar as it.
requiree~approval of the Governor for the ex-
penditure of appropriated funds to be used to
pay dues, registration fees, or any kind of
similar expense incurred in joining or partici-
pating in any type of organization, association,'
or society, is invalid and void. All,statements
of expenditures for these purposes, however,
should be filed with thenLegislative Budget
Board for informational and budgetary consider-
ations.
(2) The Comptroller is authorized to ap-
prove payment for dues and fees for a state
department or agency incident to joining or
participating in an organization without approval
of the Governor as contemplated by Section 16,
Article V, General Appropriation Act, and even
though the membership does not occur and the
expenditure is not made prior to the beginning
of the normal membership period of such organi-
zation.
C. NARTIN
cf Texas
-5561-
Hon. Rarry P. Burleiqh, Hon. James U. Cross, paqe'll. (M-1141,
Prepared by Roger Tyler
Assistant Attorney General
APPROVXD:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
J. C. Davis
Houghton Browlee
Bill Campbell
Rex White
Lynn Shivers
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WRITE
First Assistant
-5562-