THE ATTORNEY GENERAL 

OF TEXAS 

Wh 14, 1988 

Honorable Bob Bullock Opinion NO. J&872 

Comptroller of Public 

Accounts Re: Authority of State Auditor 

L.B.J. Building and Legislative Audit Committee 

Austin, Texas 78774 to conduct economv and efficiencv 

Dear Mr. Bullock: 

YOU 

tion and 

that.set 

ask six questions regarding the proper construcconstitutionality of two recently enacted bills 

forth responsibilities and authority' of the 

State Auditor and the Legislative Audit Committee. The 

Committee comprises the Lieutenant Governor,.the Speaker 

of the House, and the chairmen of the Senate State Affairs 

Committee, the Senate Finance Committee, .the House 

Appropriations Committee, and the House Nays and Means 

Committee. See Gov't Code 9321.002. Several of your 

questions ra= issues that have not been addressed yet 

specifically in any court 

opinion in Texas: 

case or any Attorney General 

these are issues of first 

The first bill with which you 

impression. 

are concerned, House Bill 

No. 699 [hereinafter H.B. 6991 amends the Government Code 

by adding several sections to chapter 321 governing the 

State Auditor and the Legislative Audit Committee, 

including sections 321.0133, 321.0134 and 321.016, that 

define specifically the sorts of audits that the auditor 

may conduct with the approval of the committee. Acts 

1987, 70th Leg., .ch. 862, 56 at 5876-5889. The second 

bill with which you are concerned, House Bill No. 2181 

[hereinafter H.B. 21811, amends sections 51.005 and 61.065 

of the Education Code, and purports to confer joint 

rulemaking authority on the State Auditor and the 

Coordinating Board. 

College 

Acts 1987, 70th Leg., ch. 823, 

§§3.06, 4.02, at 5712-13, 5725-26. Before we turn to your 

first question, we first present a brief history of the 

position of State Auditor in order that we may place in 

perspective the scope of the 1987 amendments. 

. 

audits and effectiveness audits 

under section 321.0133 of the 

Texas Government Code, and 

related questions (RQ-1279) 

p. 4225 
Honorable Bob Bullock - Page 2 (~~-872) 

.,i 

? 

The position of "State Auditor and Efficiency 

Expert," an executive branch officer appointed by the 

Governor ', was created in 1929.1 Acts 1929, 41-d Leg., 1st 

C-S., ch. 91, at 222. He was to be '*an investigator of 

all custodians of public funds and disbursing officers ,of 

the State and personnel of departments." Acts 1929, 41st 

L-3., 1st C.S., ch. 91, 51, at 222. He was granted the 

authority "to inspect all the books and records of all the 

officers, departments and institutions of the State 

Government" and to "investigate the efficiency of the the 

personnel and clerical forces thereof." Acts 1929, 41st 

L-3. I 1st C.S., ch. 91, 53, at 223. Section 4 of the act 

provided the following: 

In addition to the other duties provided 

for said Auditor, he shall thoroughly 

examine all departments of the State 

Government with special regard to their 

activities and the duplication of efforts 

between departments, and the efficiency of 

the subordinate employees in each of such 

several departments. He shall examine into 

the work done by the subordinate employees 

in the several departments of .the State 

Government. 

Upon completing the examination of any 

department he shall furnish the head of said 

department with a report on (a) the efficiency of the subordinate employees; (b) the 

status and condition of all public funds in 

charge of said department; (c) the amount of 

duplication between work done by the department so examined and other departments of 

the State Government: (d) such a system of 

accounts as will provide for a uniform 

system of auditing, bookkeeping, and system 

1. We note that section 402.026, Gov't Code, 

reposes responsibility in the Attorney General, inter 

u, to inspect monthly "the accounts of the offices of 

the state treasurer, comptroller, and each other person 

responsible for collection or custody of state funds." It 

appears that this provision, which was first enacted in 

1879 and subsequently recodified three times before its 

inclusion in the non-substantive recodification of the 

Government Code in 1985, heretofore has not been enforced. 

? 

p. 4226 
P 

Honorable Bob Bullock - Page 3 (J&872) 

of accounts for every department of State. 

He shall also make recommendations to the 

said head of the departments for the 

elimination of duplication and inefficiency. 

A copy of each such report submitted by said 

officer to the head of the department shall 

be forthwith furnished to the Governor, the 

Speaker of the House, and the President of 

the Senate. Nothing contained herein shall 

be construed as authorizing the State 

Auditor to employ or discharge any state 

employee other than those herein authorized 

to be appointed by him for his department. 

Acts 1929, 41st Leg.; 1st C.S., ch. 91, 54, at 223. And 

finally, he was required, at section 5, to prepare a 

report showing the status of all public funds in the state 

and to +ecommend to the Legislature such changes as he 

deems necessary to provide uniform, adequate and efficient 

systems of records and accounting in each department." 

Acts 1929, 41st Leg., 1st C.S., ch. 91, 55, at 224. 

The 1929 act was repealed in 1943. The position was 

renamed "State Auditor," and appointment power was vested 

in the newly-created Legislative Audit Committee, a joint 

interim committee of the legislature. Acts 1943, 48th 

Leg., ch.293, at 429 [codified at V.T.C.S. arts. 4413a-13 

through 4413a-241. Section 7 of 1943 act continued to 

repose in the Auditor the authority to audit all accounts, 

books, and financial records of every agency of the state, 

but the act for the first time purported to confer on the 

Auditor the authority, not just to report to the legislature recommended changes, but also to direct the administration or execution of the laws by executive branch 

agencies themselves insofar as he was authorized: "TO 

require such changes in the accounting system or systems 

and record or records of any office, department, board, 

bureau, institution, commission or state agency, that 'in 

his opinion will augment or provide a uniform, adequate, 

and efficient system of records and accounting." Acts 

1943, 48th Leg., ch. 293, §7(3), at 431. Section 8 of the 

1943 act also required the Auditor to prepare, again, a 

report for the head of every agency on, inter alia, the 

efficiency of subordinate employees, the amount of 

duplication between work done by the examined agency and 

other agencies, and "any suggested changes looking toward 

economy and reduction of number of clerical and other 

employees, and the elimination of duplication and 

inefficiency." Section 8 also set forth the following: 

p. 4227 
Honorable Bob Bullock - Page 4 (JR-872) 

Reports shall also contain specific 

recommendations to the Legislature for the 

amendment of existing laws or the passage of 

new laws designed to improve the functioning 

of various departments, boards, bureaus, 

institutions or agencies of State Government 

to the end that more efficient service may 

be rendered and the cost of government 

reduced. 

All recommendations submitted by the 

State Auditor shall be confined to those 

matters properly coming within his jurisdiction, which is to see that the laws passed 

by the Legislature dealing with the expenditure of public moneys are in all respects 

carefully observed, and that the attention 

of the Legislature is directed to all cases 

of violation of the law and to those 

instances where there is need for change of 

existing laws or the passage of new laws to 

secure the efficient 'spending of public 

funds. The State Auditor shall not include 

in his recommendations to the Legislature 

any recommendations as to the sources from 

which taxes shall be raised to meet the 

governmental expense. 

Acts 1943, 48th Leg., ch. 293, 58, at 432. And finally, 

section 10 of the act authorized the Legislative Audit 

Committee to conduct hearings with the head of any agency 

where the Auditor has found "evidence of improper practices of financial administration or of any general 

incompetency of personnel, inadequacy of financial 

records." Acts 1943, 48th Leg., ch. 293, 510, at 433. 

The committee was required to report to the legislature 

any refusal of the agency officials to remedy "Such 

incompetency or the, installation of proper fiscal 

records." Id. Except for a 1977 amendment giving the 

committee authority to subpoena information that it seeks, 

the act remained unchanged until 1985. At that time, the 

articles governing the Legislative Audit Committee and the 

State Auditor were recodified in a nonsubstantive revision 

and placed in Chapter 3 of the newly-enacted Government 

Code. House Bill No. 699 and House Bill No. 2181, the two 

bills about which you inquire, were adopted in 1987 by the 

70th session of the Legislature. 

p. 4228 
Honorable Bob Bullock - Page 5 (JM-872) 

Prior to the enactment of H.B. 699, section 

321.013(a) of the Government Code provided, inter alia, 

that the State Auditor shall "perform an audit of all 

governmental accounts, books, and other financial records 

of any state officer or department." 

define "audit," but section 

The chapter did not 

321.014(a) provided that the 

Vtate Auditor shall conduct each audit as directed by the 

committee and as prescribed by this chapter." With the 

passage of H.B. 699, section 321.013(f) of the Government 

Code now confers authority on the State Auditor to conduct 

various types of audits, specifically "financial ~audits, 

compliance audits, economy and efficiency audits, 

effectiveness audits, special audits, and investigations 

as defined by this chapter." 

Sections 321.0133 and 321.0134 of the Government Code 

define "economy and efficiency audit" and "effectiveness 

audit" respectively. Section 321.0133 of the Government 

Code provides: 

An economy and efficiency audit is an audit 

to determine: 

(1) whether the audited entity is 

managing or utilizing its resources, 

including state funds, personnel, property, 

equipment, and space, in an economical and 

efficient manner: 

(2) causes of inefficiencies or uneconomical practices, including inadequacies in 

management information systems, internal and 

administrative procedures, organizational 

structure, use of resources, allocation of 

personnel, purchasing, policies, and eguipment; and 

(3) whether financial, program, and statistical reports of the audited entity 

contain useful data and are fairly 

presented. 

Section 321.0134 of the Government Code provides: 

(a) An effectiveness audit is an audit to 

determine, according to established 

designated prcgram objectives, responsibilyf 

ties or duties, statutes and regulations, 

program performance criteria, or program 

evaluation standards: 

p. 4229 
Honorable Bob Bullock - Page 6 W-872) 

(1) whether the objectives and 

intended benefits are being achieved 

efficiently and effectively: and 

(2) whether the program duplicates, 

overlaps, or conflicts with another state 

program. 

(b) An effectiveness audit may be scheduled only when the audited entity is not 

scheduled for review under the Texas Sunset 

Act (Chapter 325). 

Section 321.016 of the Government Code requires, inter 

u, that the State Auditor report to the Governor, the 

Legislative Audit Committee, the administrative head and 

the chairman of the governing body of the affected agency, 

any evidence of improper practices of financial administration or "ineffective program performance"; the Legislative Audit Committee is required then to report to the 

legislature any refusal by the administrative head or the 

governing body of the agency to make changes recommended 

by the committee. 

You first ask whether section 321.016 of the Government Code, as amended by H.B. 699, is unconstitutional to 

the extent that it purports to give the Legislative Audit 

Committee the authority to order changes in the way in 

which legislation is implemented or administered by an 

executive agency. Section 321.016, Government Code, now 

provides the following: 

(a) If in the course of an audit the 

State Auditor finds evidence of improper 

practices of financial administration, 

inadequate fiscal records, uneconomical use 

of resources, or ineffective program 

performance, the State Auditor, after 

consulting with the head of the agency, 

shall immediately report the evidence to the 

governor, the committee, and the administrative head and the chairman of the governing 

body of the affected department. 

(b) If in the course of an audit the 

State Auditor finds evidence of an illegal 

transaction, the State Auditor, after 

consulting with the head of the agency, 

p. 4230 
Honorable Bob Bullock - Page 7 (JB-872) 

shall immediately report the transaction to 

the governor, the committee, and the appropriate legal authority. 

(c) Immediately after the committee 

receives a report from the State Auditor 

alleging improper practices of financial 

administration, uneconomical use of 

resources, or ineffective program performance, the committee shall review the report ' 

and shall consult with and may hold hearings 

with the administrative head and the 

chairman of the governing body of the 

affected department regarding the report. 

(d) If the administrative head or the 

governing body of the affected department 

refuses to make the changes recommended by 

the committee at the hearing or provide any 

additional information or reports requested, 

the committee shall report the refusal to 

the legislature. 

The various statutes enacted through the years 

conferring authority upon the Legislative Audit Committee 

and its effective agent, the State Auditor, reveal a trend 

toward the conferral of ever-expanding authority on both. 

The 1929 act conferred upon the State Auditor and 

Efficiency Expert the authority to examine the fiscal 

records of every state agency and to make recommendations 

to the legislature regarding the elimination of 

duplication and inefficiency. The 1943 act attempted to 

expand the authority of the newly-named State Auditor by 

conferring upon him the power, not only to report to the 

legislature recommended changes, but to direct the administration or execution of the laws by requiring each 

agency to install whatever method of accounting and record 

keeping that he recommended. After conducting hearings 

with the heads of those agencies in which the State 

Auditor found evidence of improper practices of financial 

administration, inadequate financial records, or "general 

incompetency of personnel," the newly-created Legislative 

Audit Committee was required to report to the legislature 

as a whole any refusal of agency officials to remedy those 

identified problems. And with the 1987 amendments to the 

recently-codified Government Code, the State Auditor 

appears to be empowered to "audit" not just the efficiency 

and cost effectiveness of an agency's performance, but 

also the substantive performance of the tasks and 

responsibilities imposed by law on an executive agency, 

p, 4231 
Honorable Bob Bullock - Page 8 (JM-872) 

. to determine whether there 

;eZormance." It appears, 

is "ineffective program 

for example, that inquiry into 

whether the College Coordinating Board, for instance, is 

in fact carrying out its statutory responsibilities rests 

now with the Legislative Audit Committee rather than with 

the Committee on Higher Education in the House of 

Representatives and with the Committee on Education in the 

Senate. 

Article II, section 1, of the Texas Constitution 

provides for the separation of powers between the 

executive, the judicial, and the legislative branches of 

government. It states: 

The powers of the Government of the State of 

Texas shall be divided into three distinct 

departments, each of which shall be confided 

to a separate body of magistracy, to wit: 

Those which are Legislative to one, those 

'which are Executive to another, and those 

which are Judicial to another: and no 

person, or collection of persons, being of 

one of these departments, shall exercise any 

power properly attached to either of the 

others, except in the instances herein 

expressly permitted. 

This office has consistently held that any attempt by 

the legislature to supervise the implementation of duly 

enacted statutes through the means of a legislative 

committee or through some means other than the normal 

legislative processes (set forth in sections 28 through 40 

of article III of the Texas Constitution) violates article 

II, section 1. Attorney General Opinions MW-460 (1982) r 

V-1305 (1951); V-1254 (1951); and O-4609 (1942). This 

rule is the rule in virtually every other state that has 

had cause to address this issue. See, e.9. Legislative 

Research Comm'n v. Brown, 664 S.W.2d 907 (Ky: 1984); State 

ex rel. SteDhan v. Kansas House of ReDresentatives, 687 

P.2d 622 (Kan. 1984); General Assemblv of the State of New 

Jersev v. Bvrne, 448 A.2d 438 (N.J. 1982); State ex rel. 

Barker v. Manchin, 279 S.E.2d 622 (W. Va. 1981); State of 

Alaska v. A.L.I.V.E. Voluntary 606 P.2d 769 (Alaska 

1980); see also Bonfield, S&e Administrative Rule 

Makinq, 58.3.2(c). 

In Attorney General Opinion O-4609 (1942), this 

office addressed whether a bill creating a Joint 

Legislative Advisory Committee and conferring specific 

powers thereon was constitutional. The opinion construed 

p. 4232 
Honorable Bob Bullock - Page 9 (~~-872) 

a rural aid appropriations bill, Acts 1941, 47th Leg., ch. 

549, at 880, that created a joint legislative advisory 

committee composed of five senate members and five house 

members. The committee was given the authority to approve 

numerous transactions, including the receipt of tuition 

payments and transportation aid by school districts. This 

office held that only so much of the act that created a 

joint legislative advisory committee to study school laws 

as an aid to their recodification was constitutional; the 

provisions reposing in the committee the authority to 

administer the law were unconstitutional. 

It is the function of the legislative branch 

of the government to make the laws: it is 

the function of the executive branch of the 

government to administer and execute those 

laws. In the statute under consideration, 

the Legislature of the State of Texas has 

undertaken not only to declare what the law 

shall be, which is clearly its prerogative, 

but has also undertaken to clothe a portion 

of the membership of the Legislature, the 

Joint Legislative Advisory Committee, with 

the authority to execute and administer the 

law passed by the Legislature. Under 

Article 2. Section 1. of the Constitution of 

the State of Texas. the Legislature is 

powerless to clothe itself, or a nortion of 

its members. with executive authoritv. 

(Emphasis added.) 

Attorney General Opinion O-4609 (1942) at 8. 

In Attorney General Opinions V-1305 and V-1254 

(19511, this office declared unconstitutional 

appropriations act rider that attempted to confer on tii 

Legislative Budget Board the authority to require of 

various executive branch administrative agencies further 

itemization of appropriations or specific approval of the 

expenditure of appropriated funds by the board. 

The phrase 'any power properly attached 

to either of the others' [set forth in 

Article II, section l] prompts inquiry as to 

what powers belong to each branch. 'Legislative' means 'making, or having the power 

to make, a law or laws.' Webster's New 

International Dictionary (2d Ed. 1938). 

This includes making and itemizing appropriations. 'The power to itemize 

p. 4233 
Honorable Bob Bullock - Page 10 (JR-872) 

appropriations is a legislative power which 

it may exercise if it sees fit as lona 

the matter is in its hands. . . . Tit: 

legislation is complete when the 

;zEp;iation is made.' -Peoole V. Tremaine 

. . 817 (N.Y. Ct. ADD. 1929). Th; 

? 

monev once ansronriated. th;-Legislature is 

no longer authorized to concern itself with 

the further segregation and disbursement of 

the funds. the constitutional inhibition 

beina not onlv against actual usurnation of 

the function, but also against one 

denartment's setting itself UD in a 

sunervisorv caoacitv over the actions of 

another. lcitation omittedl. Parentheticallv. it mav be noted here that if the 

gnnroval of nrooosed exnenditures be considered a legislative function. still such 

function could not be delegated bv the body 

a a 1 

[%tati%"o~it~~d.~ 

few of its members. 

The legislative function'being to make 

laws, the executive function is to carry 

them out. Webster's New International 

Dictionary (2d Ed. 1938), in its definition 

of 'executive,' uses the phrases 'or 

carrying into effect' . . . 'or secures 

their due performance.' More snecificallv, 

the fiscal administration of the affairs of 

the ao ernment has been held to be an 

executi:e dutv lcitation omitted.1 The 

above riders 'thus attern& to vest 

executive Dower in a ioint committee of tFZ 

legislative branch. (Emphasis added.) 

Attorney General Opinion V-1254 (1951) at 15. 

And finally, in Attorney General Opinion MW-460 

(1982), this office held unconstitutional legislation that 

purported to confer authority on the standing committees 

of both houses of the legislature effectively to veto or 

repeal administrative rules adopted by executive agencies 

pursuant to the Administrative Procedure and Texas 

Register Act, article 6252-13a, V.T.C.S. The opinion held 

that the discretionary rulemaking authority delegated to 

an administrative agency is an executive function; it is 

therefore impermissible under article II, section 1 of the 

Texas Constitution, for the legislature or one of its 

committees to usurp the function. See Walker v. Baker, -7 

p. 4234 
Honorable Bob Bullock - Page 11 (JM-872) 

P 

. 

196 S.W.2d 324 (Tex. 1946); Kx oarte Younablood;251 S.W. 

509 (Tex. Crim. App. 1923). 

In passing upon the constitutionality of any statute, 

we begin with a presumption of validity. Smith v. Davis, 

426 S.W.2d 827 (Tex. 1968); Texas National Guard Armory 

Board v. McGraw 

required, moreov&, 

126 S.W.2d 627 (Tex. 1939). We are 

to construe the code .provisions at 

issue in a way that comports with the constitution, if any 

such reasonable c'onstruction is possible. McKinnev 

Blankenshin, 282 S.W.2d 691 (Tex. 1955); Thomas v. Groeby; 

212 S.W.2d 625 (Tex. 1948). See also Gov't Code, 5311.021 

(Code Construction Act): Local Gov't Code, 51.002 

(application of Code Construction Act to Local Government 

Code). 

If we were to construe section 321.016 of the 

Government Code in the fashion that you suggest, i.e., as 

conferring authority on the Legislative Audit Committee to 

order changes in the way that executive agencies implement 

or administer duly enacted statutes, we would be 

constrained to hold the section unconstitutional. 

However, we do not so construe that provision. Subsection 

(c) of section 321.016 merely confers on the committee the 

authority to make recommendations to the various executive 

agencies, recommendations that each agency may ignore. 

However, subsection (d) provides that, if any agency 

refuses to accept any such recommendation, the committee 

is required to inform the legislature as a whole of that 

fact. Subsection (d) permits an ill-disguised attempt by 

the committee to direct the methods by which investigated 

administrative agencies execute the laws. While it is true 

that the committee itself technically is not conferred the 

authority to impose sanctions or to enforce compliance by 

those administrative agencies that refuse to comply with 

committee recommendations, the absence of such conferral 

of authority does not resolve the article II, section 1, 

issue. Subsection (d) clearly acts in a punitive, and 

perhaps in 6 coercive, fashion that is tantamount to a 

legislative usurpation of executive power, in violation of 

article II, section 1, of the Texas Constitution. We do 

not question the authority of the legislature or of a 

committee of the legislature to gather information and to 

investigate those matters about which it properly could 

enact legislation, a subject that we will address more 

fully in answer to your fourth and fifth questions. We 

question only the propriety of making a committee's report 

to the legislature as a whole mandatory upon an administrative agency's refusal to comply with the committee's 

recommendations. 

p. 4235 
Honorable Bob Bullock - Page 12 (JB-872) 

As a matter of law, the committee does not have the 

authority to order any executive agency to implement or 

administer any law in any particular manner, any more than 

it has authority to direct officers in the judicial branch 

in the construction of the laws, which the constitution 

reposes in the judicial branch. The legislature's 

authority to direct the administration of laws whose 

execution is reposed by statute in.so-called "legislative 

agencies," see. e.g., Gov't Code, §§326.001-326.003, is 

greater, 'of course. Accordingly, we conclude that chapter 

321 of the Government Code, which creates the Legislative 

Audit Committee and the office of State Auditor and 

confers powers and duties thereon, does not authorize the 

Legislative Audit Committee to order an executive agency 

to change the way in which it implements or administers 

any law; however, subsection (d) of section 321.016 does 

authorize an impermissible intrusion by the legislative 

branch into areas of administration reposed by the Texas 

Constitution in the executive branch. Insofar as that 

subsection requires the committee to report to the legislature as a whole in the event that an administrative 

agency fails to adopt its recommendations, subsection (d) 

is unconstitutional. 

You next ask whether the State Auditor, whom you 

characterize as, in effect, an employee of the Legislature, may properly exercise authority to supervise members 

of the executive branch in their implementation of 

statutes or whether his proper role is investigatory only. 

As we noted earlier, the position of State Auditor was 

created in 1943 to replace an executive officer, the 

"State Auditor and Efficiency Expert," appointed by the 

governor. Acts 1929, 41st Leg., 1st C.S., ch. 91, at 222. 

The 1943 act repealed the 1929 act, created the Legislative Audit Committee, renamed the position "State 

Auditor," and conferred authority on the committee to 

appoint him. There is no question that the State Auditor 

is an appointee and an agent of the legislature. &g 

Gov't Code, §§326.001-326.003 (authorizing co-operation 

between houses of the legislature and leaislative 

agencies) (formerly codified as article 5429g, V.T.C.S.); 

see also Attorney General Opinions MB-192 (1980): H-1063 

(1977); V-504 (1948). Accordingly, we conclude that the 

State Auditor is a subordinate of the legislative branch. 

For the reasons set forth in answer to your first 

question, if we were to construe chapter 321 as conferring 

on the State Auditor the authority to order any changes in 

the way in which executive agencies administer the laws, 

we would be constrained to declare any such provisions 

p. 4236 
Honorable Bob Bullock - Page 13 04-872) 

unconstitutional as a violation of article II, section 1, 

of the Texas Constitution. And, again, for the reasons 

set forth in answer to your first question, we do not 

construe any provision of chapter 321 of the Government 

Code as conferring authority on the State Auditor to order 

executive agencies to change the way in which statutes are 

implemented or administered. If the State Auditor were 

part of the executive branch whose activities were 

directed, as they were prior to the 1943 enactment, by the 

Governor rather than by the Legislative Audit Committee, 

his authority possibly could be broader. But such is not 

the case. 

Section 321.013 of the Government Code sets forth the 

powers and duties of the State Auditor and provides: 

(a) The State Auditor shall conduct 

audits of all departments, including institutions of higher education, as specified in 

the audit plan. At the direction of the 

committee, the State Auditor shall conduct 

.an audit or investigation of any entity 

receiving funds from the state. 

(b) The State Auditor shall conduct the 

audits in accordance with generally accepted 

auditing standards as prescribed by the 

American Institute of Certified Public 

Accountants, the Governmental Accounting 

Standards Board, the United States General 

Accounting Office, or other professionally 

recognized entities that prescribe auditing 

standards. 

(c) The State Auditor shall determine the 

audit plan for the state for each fiscal 

year. In devising the plan, the State 

Auditor shall consider recommendations 

concerning coordination of agency functions 

made by the committee composed of the 

Legislative Budget Board, Sunset Advisory 

Commission, and State Auditor's Office. The 

plan shall provide for auditing of federal 

programs at least once in each fiscal biennium and shall ensure that audit reguirements of all bond covenants and other credit 

or financial agreements are satisfied. The 

committee shall review and approve the plan. 

p. 4237 
Honorable Bob Bullock - Page 14 (JK-872) 

(d) At any time during an audit or 

investigation, the State Auditor may require 

the assistance of the administrative head, 

official, auditor, accountant, or other 

employees of the entity being audited or 

investigated. 

(e) The State Auditor is entitled to 

,access to all of the books, accounts, 

confidential or unconfidential reports, 

vouchers, or other records of information in 

any department or entity subject to audit, 

including access to all electronic data. 

However, the State Auditor has access to 

information and data the release of which is 

restricted under federal law only with the 

approval of the appropriate federal administrative agency, and the State Auditor shall 

have access to copyrighted or restricted 

information obtained by the Office of the 

Comptroller of Public Accounts under subscription agreements and utilized in the 

preparation of economic estimates only for 

audit purposes. 

(f) The State Auditor may conduct financial audits, compliance audits, economy and 

efficiency audits, effectiveness audits, 

special audits, and investigations as 

defined by this chapter and specified in the 

audit plan. 

(g) To the extent that the performance of 

the powers and duties of the State Auditor 

under law is not impeded or otherwise 

hindered, the State Auditor shall make 

reasonable efforts to coordinate requests 

for employee assistance under Subsection (d) 

or requests for access to books, accounts, 

vouchers, records, or data under Subsection 

(e) so asp not to hinder the daily operations 

of the audited entity. 

(h) The State Auditor may not conduct 

audits of private entities concerning 

collection or remittance of taxes or fees to 

the state if the entity is subject to audit 

by another state agency for the taxes or 

fees. 

p. 4238 
Honorable Bob Bullock - Page 15 (JM-872) 

. 

(i) If the State Auditor decides a change 

in an accounting system is necessary, the 

State Auditor shall consider the present 

system of books, records, accounts, and 

reports to ensure that the transition will 

be gradual and that the past and present 

records will be coordinated into the new 

system. 

Sections 321.0131 through 321.0136 define the various 

audits and investigations that the State Auditor may 

conduct. Nothing in these sections or in section 321.016, 

purports to confer any authority upon the State Auditor to 

direct the activities of state agencies. 

In your third question you ask whether sections 

51.005 and 61.065 of the Education Code, as amended by 

H.B. 2181, are unconstitutional insofar as they purport to 

allow the State Auditor, an agent of the legislative 

branch, to prescribe administrative rules for state 

institutions of higher education. Prior to the 1987 

amendments, the authority to prescribe such administrative 

rules was reposed solely in the College Coordinating 

Board. In a letter accompanying a brief submitted to this 

office by the State Auditor, it is urged that, if it is 

constitutional for the legislature to delegate to a member 

of the executive branch the authority properly to promulgate rules that have the force and effect of law, it is 

certainly constitutional for the legislature to delegate 

such authority to a member of the legislative branch. We 

disagree; we conclude that the amended sections of the 

Education Code are unconstitutional insofar as they 

purport to confer joint rulemaking authority on the State 

Auditor and the College Coordinating Board. 

Section 51.005 of the EducationCode provides: 

(a) True and full accounts shall be kept 

by the governing board and by the employees 

of the institution of all funds collected 

from all sources and of all sums paid out 

and the persons to whom and the purposes for 

which the sums are paid. The governing 

board shall annually, between September 1 

and January 1, print a complete report of 

all the sums collected, all expenditures, 

and all sums remaining on hand. The report 

P. 4239 
Honorable Bob Bullock - Page 16 (JM-872) 

. 

shall show the true condition of all funds 

as of the August 31 preceding as well as the 

collections and expenditures for the 

preceding year. 

(b) ReDOrtS under this section must be in 

a form aDVrOVed iointlv bv the coordinatinq 

board and the state auditor. Tbe accoun&&lg 

and classification vrocedures of each institution must be consistent with uniform 

procedure vrescribed f r that DurDose bv 

the coor%natinci boar: and the state 

auditor. The requirements imvosed bv the 

coordinating board and state auditor must be 

designed to reduce DaDerwork and duvlicative 

reDorts . 

(c) The governing board shall furnish one 

copy of the report each to the governor, 

comptroller of public accounts, state 

auditor, Texas Higher Education Coordinating 

Board, Legislative Budget Board, House 

Appropriations Committee, Senate Finance 

Committee, and Legislative Reference LibraW. The governing board shall retain five 

copies of the report for distribution to 

legislators or other state officials on 

request. (Emphasis added.) 

Section 61.065 of the Education Code provides: 

(a) The state auditor and the board 

iointlv shall DreSCribe and DeriOdiCallV 

UDdate a uniform 'svstem of financial 

accounting and reDortina for the institutions of higher education. includinq 

definitions of the elements of cost on the 

basis of which aDDroDriations shall be made 

and financial records shall be maintained. 

In order that the uniform system of 

financial accounting and reporting shall 

provide for maximum consistency with the 

national reporting system for higher 

education, the uniform system shall 

incorporate insofar as possible the 

provisions of the financial accounting and 

reporting manual published by the National 

Association of College and University 

1 

? 

p. 4240 
Honorable Bob Bullock - Page 17 (JM-872) 

Business Officers. The accounts of the 

institutions shall be maintained and audited 

in accordance with the approved reporting 

system. 

(b) The coordinating board shall annually 

evaluate the informational requirements of 

the state for purposes of simplifying institutional reports of every kind and shall 

consult with the state auditor in relation 

to appropriate changes in the uniform system 

of financial accounting and reporting. 

(Emphasis added.) 

In legal theory, the legislative power vested in the 

legislature by article III, section 1, of the constitution 

must be exercised by it alone. Texas National Guard 

Armorv Board v. McGraw, sunra; Brown v. Humble Oil 8 

Refining Co., 83 S.W.2d 935 (Tex. 1935). The principle of 

non-delegation, however, has certain important 

qualifications. See aenerallv, Annot., Permissible limits 

to delegation of legislative Dower, 79 L.Ed. 414 (1935). 

Many powers properly have been delegated by the legislature to administrative agencies. See, e.9 q 

Authoritv of Dallas v. Hiaainbotham, 143 s.i: 79""yEi. 

1940); Brazos River Conservation & Reclamation Dist. v. 

McGraw, 91 S.W.2d 665 (Tex. 1936); Trimmier v. Carlton, 

296 S.W.Zd 1070 (Tex. 1927). Among them has been the 

power to make rules having the force and effect of law. 

S , e.a., Housing Authoritv of 

$&a 

Dallas v. Hiaainbotham, 

.; O'Brien v. Amerman, 247 S.W. 270 (Tex. 1922): 

Soears v. Citv of San Antonio, 223 S.W. 166 (Tex. 1920). 

Valid rules promulgated by an administrative agency acting 

within its statutory authority have the force and effect 

of legislation. Lewis v. Jacksonville Building and Loan 

Association 540 S.W.2d 307 (Tex. 1976). A 

oromulaated'bv an administrative aaencv acting within 

rule 

its 

delegated authority should be considered under the same 

.principles as if it were the act of the legislature. 

Texas Licuor Control Board v. Attic Club, Inc., 457 S.W. 

41 (Tex. 1970). Nevertheless, when such rulemaking power 

is vested in an agency of the state, it is regarded as an 

incident of the executive power to administer laws enacted 

by the legislature, and not as a power to enact laws. It 

is held that an act of the legislature that is complete 

and comprehensive in itself and which confers upon an 

agency authority only to establish rules, regulations and 

minimum standards to reasonably carry out the expressed 

purposes of the leaislature's act, does not make a 

constitutionally forbidden delegation of legislative 

p. 4241 
Honorable Bob Bullock - Page 18 (JM-872) 

power. Oxford v. Hill 558 S.W.2d 557 (Tex. Civ. App. - 

Austin 1977, writ ref:d). It confers only the power to 

efficiently administer the complete law already 

established by the legislature. See E 

561 S.W.2d 503 (Tex. Crim. App. 1978). 

Comoanv v. State 153 S.W.2d 681 (Tex. 1941) (delegated 

power to fix rat& is legislative power). 

The power to control or correct decisions committed 

to administrators by law is an executive,function. Walker 

v. Baker, m. The legislature, of course, may in the 

first instance severely restrict the discretion of 

executive officers or administrators to make rules by so 

thoroughly detailing legislation before it leaves its 

ambit that little or no room is left for administrative 

interpretation. &g Fire DsDartment f Citv of Fort Worth 

v. Citv of F r-t Worth 217 S.W.2d 664O(Tex. 1949); 

Advisory No.O2 (1973): 

Letter 

And, by the proper exercise of its 

law-making powers, the legislature may supersede or repeal 

any agency rule or decision that has acquired the force 

and effect of law. But when a statute commits. to an 

administrative agency's control the power to execute that 

law and promulgate rules in order to better administer the 

legislative policy embodied therein, neither the legislature nor any of its committees may direct that agency 

regarding the manner in which the executive discretion is 

thus reposed. Tex. Const. art. II, 51. 

If a discretionary Nlemaking function delegated to 

an administrative agency is an executive function -- as we 

think it is -- it is impermissible for the legislature (or 

one of its committees) to usurp that function. Tex. 

Const. art. II, 51, Walker v. Baker, m; Ex oarte 

Younablood, suora; Attorney General opinions V-1254 

(1951); O-4609 (1942). See State ex r 1 Judae v. 

Legislative Finance Committee, et al., 5:3- P.2d 1317 

(Mont. 1975). Se also Anderson 

(Colo. 1978): Ine r ni i of 

v. Lamm, 579 P.2d 620 

the Justices to the 

Governor, 341 N.E.2de25z (:a::. 1976). See also, Railroad 

Commission of Texas v. Shell Oil ComDanv, 161 S.W.Zd 1022 

(Tex. 1942): penison v. State, 61 S.W.2d 1017 (Tex. Civ. 

APP. - Austin), writ ref'd ner curiam, 61 S.W.2d 1022 

(Tex. 1933). 

The amendments also violate article III, section 1, 

of the Texas Constitution, even if the powers conferred 

could be said to be purely legislative in character. It 

was held in Parks v. West, 111 S.W. 726 (Tex. 1908), and 

reiterated in Walker v. Baker, m, that where the 

constitution gives a power and prescribes the means by 

p. 4242 
Honorable Bob Bullock - Page 19 (JM-872) 

which or the manner in which it is to be exercised, such 

means or manner is exclusive of all others. Article III, 

section 1, of the constitution vests the legislative power 

of the state "in a Senate and House of Representatives, 

which together shall be styled 'The Legislature of the 

State of Texas."' Sections 29 through 40 of that article 

detail at great length the manner in which the legislature. 

must exercise its right to legislate. Because the means 

by which the legislature is to accomplish the enactment of 

laws is expressly provided by the constitution, any 

authority for the legislature to exercise that right in a 

different mode is excluded. m Walker v. Baker, suvra: 

American Indemnitv Comnanv v. Citv of Austin, 246 S.W. 

1019 (Tex. Crim. App. 1922). 

Accordingly, we conclude that the two amended 

Education Code provisions are unconstitutional because 

they attempt to confer upon members of the legislative 

branch of government an executive power to efficiently 

administer laws enacted by the legislature. 

P 

The restrictions in article II, section 1, apply, to 

a "collection of persons" of the legislative department. 

It was held in Ex carte Younablood, 251. S.W. 509 (Tex. 

Crim. App. 1923), that when a power conferred by the 

constitution upon the~legislature or either branch thereof 

is in turn conferred by the constitutionally designated 

legislative body upon a committee composed of members of 

the house and senate, the committee is a "collection of 

persons" within the proscription of the foregoing constitutional provision -- and one to which non-legislative 

powers cannot be delegated. See also Walker v. Baker, 196 

S.W.Zd 324 (Tex. 1946); Attorney General Opinions V-1254 

(1951); o-4609 (1942). See also Anderson v. Lamm, 579 

P.2d 620 (Colo. 1978); In re Ovinion of the Justices to 

the Governor, 341 N.E.2d 254 (Mass. 1976): Bramlette v. 

Stringer 

Tremaine: 

195 S.E. 257 (So. Car. 1938); Peoole v. 

168 N.E. 817 (N.Y., 1929). 

It has been suggested that Texas has adopted the more 

modern view of the doctrine of separation of powers, which 

permits cooperation between branches of government rather 

than enforces a rigid separation between them. It is 

contended that the older view, perhaps best exemplified by 

Kilbourn v. Thomnson, 103 U.S. 168 (1880), has been discarded in favor of a more flexible construction of the 

constitutional provision. In Kilbourn v. Thomnson, w, 

the United States Supreme Court set forth a classic statement of the older construction: 

p. 4243 
Honorable Bob Bullock - Page 20 (JW-872) 

It is believed to be one of the chief merits 

of the American system of written constitutional law, that all powers intrusted to 

government, whether state or national, are 

divided into the three grand departments of 

government, the executive, the legislative, 

and the judicial. That the functions 

appropriate to each of these branches of 

government shall be vested in a separate 

body of public servants, anp that the 

perfection of the svstem recuires that the 

lines which sevarate and divide thes 

deDartmentS be broadlv and clearlv defined:! 

Jt is also essential to the successful 

working of this svstem that the nersons 

intrusted with Dower in anv one of these 

branches shall not be oermitted to encroach 

unon the oowers confided to the others. but 

that each shall bv the law of its 'creation 

be limited to the exercise of the vowers 

xrouriate to its own deDartment and to no 

Ethel;. (Emphasis added). 

Id. at 190-191. A statement of.the more modern view was 

well expressed in J. W. Hamnton. Jr. & co. v. United 

States, 276 U.S. 394 (1928): 

Our Federal Constitution and State 

Constitutions of this country divide the 

governmental power into three branches 

. . . . [T]he rule is . . . in carrying out 

that constitutional division into three 

branches it is a breach of the fundamental 

law if Congress gives up its legislative 

power and transfers it to the President or 

to the Judicial branch, or if by law it 

attempts to invest itself or its members 

with either executive or judicial power. 

This is not to say that the'three branches 

are not coordinate Darts of one government 

and that each in the field of its duties may 

not invoke the action of the other two 

branches insofar as the action invoked shall 

not be an assumvtion of the Constitutional 

field of action of another branch. In 

determining what it mav do in seekinq 

assistance from another branch. the extent 

p. 4244 
P 

P 

Honorable Bob Bullock - Page 21 (JW-872) 

and character of that assistance must be 

fixed according to common sense and the 

inherent necessities of the aovernmental 

coordination. (Emphasis added.) 

a. at 406: see also, y nastown Sheet 8 Tube Co. v. 

Sawer, 343 U.S. 579 at 6:: (1952). But see, Singer, 2a 

Sutherland on Statuto rv Construction, 53.07. The rule as 

stated in Sutherland seems to be: 

This interpretation of the doctrine permits 

the exercise by one department of some 

powers of the other departments when it is 

essential to the discharge of a primary 

function, when it is not an assumption of 

the whole power of another department, and 

when the exercise of the other power does 

not jeopardize individual liberty. 

Id. at 83.06 (and cases cited therein). 

The'argument that. Texas adopts the more modern view 

rests primarily upon language found in a case that 

received no review by the Supreme Court, Coates v. 

Windham, 613 S.W.Zd 572 (Tex. Civ. App. - Austin 1981, no 

writ), which upheld an appropriations act rider that 

conferred upon certain, specified public officers the 

limited and negative power of declining approval of any 

particular prison site proposed by the Department of 

Corrections. The relevant passage provides: 

We believe that it is well settled that this 

constitutional prohibition [providing for 

separation of powers] states a princivle of 

government and not a rigid classification as 

in a table of organization. This provision 

must be interpreted along with other 

constitutional provisions, and when this is 

done it is clear that the Constitution does 

three things: (1) it provides for three 

polar functions of government; (2) it 

delegates certain powers to each of the 

three departments in a distribution of all 

governmental powers; and (3) it blends 

legislative, executive, and judicial powers 

in a great many cases. [Footnote omitted.] 

The proper interpretation of Article II, 

section 1 is therefore dictated by its 

context. The proper interpretation is that 

this provision prohibits a transfer of a 

p. 4245 
Honorable Bob Bullock - Page 22 (JM-872) 

whole mass of powers from one department to 

another and it prohibits a person of one 

branch from exercising a power historically 

or inherently belonging to another department. It may not be interpreted in a way 

that prevents cooperation or coordination 

between two or more branches of government, 

hindering altogether effective governmental 

action. It was designed, as were other 

checks and balances, to prevent excesses. 

(Emphasis in original). 

613 S.W.2d 572 at 576. 

For purposes of this discussion, we are not prepared 

to accept the proposition that Texas adopts the more 

modern, flexible construction of the separation of powers 

doctrine, absent a definite ruling of the Texas Supreme 

Court. We note that it is only under that construction 

that article II, section 1, would permit the legislature, 

or more specifically a joint interim committee thereof, to 

'appoint the State Auditor, since the appointment power, 

except for specific constitutional provisions reposing 

such authority in others, is historically one that inheres 

in the office of Governor. See, Walker v. Baker, w. 

Because you do not ask about the constitutionality of the 

statute pursuant to which the State Auditor is appointed, 

we need not resolve that issue. But even this more 

flexible construction will not permit the sort of 

intrusion that the Education Code amendments contemplate. 

In State Board of Insurance v. Betts, 308 S.W.Zd 846 

(Tex. 1958), the court held that, in an instance in which 

the attorney for a statutory receiver for an insurance 

company resigned and the board of insurance commissioners 

did not designate a successor, the district judge had 

discretionary power to appoint an attorney for the 

receiver, since he had judicial control or supervision of 

the receivership case. The statute then in force 

conferred appointment authority upon the board. The court 

seemed to accept the modern construction of the separation 

of powers principle when it rejected a challenge to the 

judge's action under article II, section 1. But the court 

stated, at 851-852: 

However the controlling factor in settling 

the constitutional point presented is the 

presence or absence of interference with the 

effective judicial control occasioned by the 

executive power to select a liquidator. 

. . . It is onlv when the functioning of the 

--.. 

-I 

p. 4246 
Honorable Bob Bullock - Page 23 (JM-872) 

- 

- 

judicial orocess in a field constitutionally 

committed to the control of the courts is 

interfered with bv the executive or 

legislative branches th t constitutional 

problem arises. (Emphas?s zdded.) 

Analogously, we conclude that the Education Code 

amendments about which you inquire permit the legislature, 

or more specifically an effective agent of a committee of 

the legislature, to interfere with the proper functioning 

of an executive branch agency in a field constitutionally 

committed to its control, i.e. the proper execution or 

administration of the law and the responsibilities duly 

imposed upon it by statute. Our construction of article 

II, section 1, and article III, section 1, suggests that 

the State Auditor may. not constitutionally prescribe 

accounting and record keeping procedures for all state 

agencies. There is no question that the legislature is 

authorized to prescribe the accounting and record keeping 

procedures to be followed by state agencies. It is 

doubtful, however, whether the State Auditor and the 

Legislative Audit Committee may prescribe such procedures. 

Although such authority has been conferred by statute 

sinc.e 1943, general acquiescence in a custom which may not 

have resulted in a harmful violation of the constitution 

does not nreclude a contest when substantial rights are 

insisted upon. Citv of Los Anaeles v. Los Anaeies City 

Water Co., 177 U.S. 558 (1919). If it be urged that the 

result that we reach here is unrealistic, impractical, and 

inefficient, we note the words of the United States 

Supreme Court in the recent case of Immiciration and 

Naturalization Service v. Chadha, 462 U.S. 919 at 944 

11983) fwhich held that the so-called "leaislative veto" 

&an unconstitutional violation of the implied separation 

of powers principle of the U.S. Constitution): 

. . . the fact that a given law or procedure 

is efficient, convenient, and useful in fac- 

'ilitating functions of government, standing 

alone, will not save it if it is contrary to 

the Constitution. Convenience and efficiency are not the nrimarv obiectives -- or the 

hallmarks -- of democratic government. . . . 

We conclude that the Education Code provisions about 

which you inquire interfere impermissibly with the proper 

administration of the laws reposed by article II, section 

1, in the executive branch. Accordingly, we conclude that 

it is constitutionally impermissible for the legislature 

to delegate to the State Auditor and the College 

p. 4247 
Honorable Bob Bullock - Page 24 (JM-872) 

Coordinating Board the joint authority to promulgate 

administrative rules. 

You next ask: 

Whether the State Auditor's authority as 

legislative staff is similarly limited to 

investigating matters that could lead to 

legislation? 

Assuming a 'yes' answer to my fourth guestion, my fifth question is: 

Since the Comptroller and nd the 

Legislature has .been given constitutional 

responsibility for the revenue estimating/ 

budget certification function, Tex. Const. 

Art. III, Sec. 49a, and it is not clear what 

legislation could constitutionally be 

enacted controlling the manner in which the 

revenue estimate for budget certification is 

determined, whether the State Auditor has 

authority to evaluate or inquire into how 

the revenue estimating/budget certification 

function is carried out. 

Courts in this state long ago upheld the right of the 

legislature, to appoint committees for the purposes of 

conducting investigations and gathering information 

regarding the possible enactment of legislation. Ex varte 

Fercruson; 15 S.W.Zd 650 (Tex. 1929); Terre11 v. Kinq, 14 

S.W.Zd 786 (Tex. 1929). 

The legislature has the power to investigate 

any subject regarding which it may desire 

information in connection with the proper 

discharge of its function to enact, amend or 

repeal statutes or to perform any other act 

delegated to it by the constitution. . . . 

A legislature in conducting whatever inguisitions the proper exercise of its functions 

require, must be as broad as the subject to 

which the inquiry properly entered into has 

relation. 

Mason, Manual of Leqislative Procedure, 9795 (1970). As 

the Texas Supreme Court declared in Terre11 v. Kinq: 

Not only does the Constitution, in the grant 

of the rule-making power [by means of which 

p. 4248 
Honorable Bob Bullock - Page 25 (JM-872) 

P 

each house is empowered to organize itself], 

authorize either-house to name such committees as it may deem necessary or proper for 

purposes of investigation and inquiry, when 

looking to the discharge of any legitimate 

function or duty of such house, but the 

Constitution goes further and makes 

consideration by a committee, a condition 

precedent to the enactment of any law. 

Section 37, article 3. 

14 S.W.2d at 789. 

Generally, however, the legislative power to 

investigate is not absolute, see, e.a., Gibson v. Florida 

Legislative Investisation Committee, 372 U.S. 539 (1962); 

State ex rel. Fatzer v. Anderson 299 P.2d 1078 (Kan. 

1956) ; Commonwealth ex rel. Car&i v. Brandamore. 327 

A.2d 1 (Pa. 1974). and it has been held to be lim ited to 

the obtaining of information on matters that fall within 

the proper field of legislative action. See.e.a., 

Ferrantello v. State, 256 S.W.Zd 587 (Tex. Crim. App. 

1952); State ex rel. Fatzer v. Anderson, sunra; Commonwealth ex rel. Carcaci v. Brandamore, suora. The powers of 

an investigating committee, subject to limitations on the 

investigating power of the legislature, are in general as 

broad as the resolution constituting it. Ex narte Wolters, 

144 S.W. 531 (Tex. Crim. App. 1912). 

It is a principle of constitutional law that 

where there is a grant of power in the 

Constitution to a department of Government, 

or to a constitutional or statutory officer, 

or tribunal, without defining the manner or 

form in or by which it is to be exercised 

and carried into effect, the Legislature may 

legitimately prescribe reasonable rules by 

which this may be done. And though such 

power may not be taken away by the Legislature, and should it fail or refuse to 

legislate so as to provide for the efficient 

use and exercise of the power, the department , officer, or tribunal to whom it is 

delegated might possibly act in accordance 

with its own discretion, yet when the 

Legislature has made reasonable and 

appropriate provisions for its proper 

exercise, it should and will be exercised in 

conformity with such provisions. 

p. 4249 
Honorable Bob Bullock - Page 26 (JM-872) 

Austin v. Gulf. Colorado. and Santa Fe Railroad Co., 45 

Tex. 234, 265 (1876). But it is in no way certain that 

article III, section 49a, fails to set forth the manner or 

form by which you are required to perform your duty. See. 

-, Attorney General Opinion WW-640 (1959) (holding 

unconstitutional in part the predecessor statute to 

article 4348a, V.T.C.S., now codified as Government Code, 

§5403.013, 403.121-403.122). This. office declared in 

Attorney General Opinion JM-666 (1987): 

In Attorney General Opinion WW-640 

(1959), Attorney General Will Wilson 

considered the constitutionality of a bill 

that, among other things, attempted to 

control the Comptroller's estimates of the 

outstanding but undisbursed appropriations 

to be expected at the end of a biennium. 

The opinion concluded, 'Insofar as this bill 

attempts to make estimates it is unconstitutional as a legislative invasion of the 

duties of the comptroller.' 

The bill at issue there, with the offending provision 'making estimates1 deleted, 

became article 4348a, V.T.C.S., still 

extant. The remainder of the bill, in the 

form it was considered by Attorney General 

Wilson, was characterized as an instruction 

to the Comptroller 'to use the cash 

accounting basis' and was pronounced 

constitutional inasmuch as, according to the 

opinion: 

Reading Section 49a of Article III from 

its four corners, it is our opinion that 

this constitutional provision contemplates that the Comptroller, in making 

his estimate for certification of bills, 

use the cash accounting method. 

Thus, article 4348a. V.T.C.S.. is to be 

read not as a legislative mandate defininq 

the Dower of the Comntroller under section 

49a with resoect to certifications or estimates made for the ourvose. but. rather. as 

a direction that he conform to the reciuirements of section 49a itself bv usina the 

cash accountins method in arriving at his 

estimates for that nurnose. (Emphasis 

added.) 

p. 4250 
Honorable Bob Bullock - Page 27 (JM-872) 

For purposes of this opinion, we accept the assertion 

that the means and manner by which you must perform the 

budget certification/revenue estimate certification 

processes are set forth in the constitution with sufficient specificity such that the legislature is without 

authority, absent a constitutional amendment, to direct 

you in the manner in which you carry out your constitutional responsibilities. It necessarily follows that the 

legislature is without authority to inquire into the 

manner and method by which you arrive at the budget 

certification/revenue estimate figures, if the purpose for 

which it seeks the information'is to enact legislation. 

But, article XVII, section 1, of the Texas Constitution 

reposes in the legislature the sole authority to propose 

amendments to the constitution; the issue then focuses 

upon the authority of the legislature to inquire into the 

manner and method by which you perform your constitutional 

duties if such inquiry is done in aid of determining the 

need for any such amendments. 

We are not unmindful of the importance of this 

question: indeed, it goes to the very heart of the nature 

of the kind of government that we have. Texas, unlike 

many states; sets forth in its constitution the duties and 

responsibilities of many of its state officers. If we 

permit the State Auditor and the Legislative Audit Committee, under the guise of performing "economy and efficiency 

audits" or "effectiveness audits" to inquire into the 

manner by which you perform the duties reposed in you by 

the constitution of this state, we perforce would have to 

permit such an E'audit@' inquiry into the manner in which 

other constitutional officers perform their constitutional 

duties. We would have to permit the Legislative Audit 

Committee and the State Auditor to inquire into the manner 

by which the Governor exercises his appointment power and 

his authority to veto legislation. We would have to 

permit the Legislative Audit Committee and the State 

Auditor to inquire into the manner in which the justices 

of the Texas Supreme Court and the Texas Court of Criminal 

Appeals administer their respective caseloads and deliberate and arrive at their decisions. We would have to 

permit the Legislative Audit Committee and the State 

Auditor to inquire into the manner in which the Attorney 

General advises and represents state agencies. 

We do not resolve here the issue as to the scope that 

any such legislative inquiry could possess. We think that 

your question raises the significant issue as to whether 

the direction or guidance instructing any such investigating committee must be reasonably specific and whether any 

p. 4251 
Honorable Bob Bullock - Page 28 (JM-872) 

resolution constituting such investigation must be 

inveighed with sufficient dignity to convey the extreme 

significance of what is undertaken. We question whether a 

mere decision by the State Auditor and the Legislative 

Audit Committee to so investigate, under the guise of 

conducting an "economy and efficiency audit" or an 

"effectiveness audit," is sufficient. We need not, 

however, determine whether the State Auditor and the 

Legislative Audit Committee may conduct an "economy and 

efficiency audit" or an "effectiveness audit" for the 

purpose of making an inquiry into the manner in which you 

perform the duties reposed in you by the Texas 

Constitution. We need note only that nothing in the 

Government Code purports to confer such authority in the 

first place. Subsection (e) of section 321.013 permits 

the Auditor to examine, for example, whether subscription 

material exists, but not the use to which it is put. Nor 

does it authorize an inquiry into discretionary decisionmaking by you that is personal to you as a constitutional 

officer. We add that the Legislative Audit Committee, of 

course, has no authority to direct you in the manner in 

which the budget certification/revenue estimate figures 

are derived. 

Finally, you ask whether the State Auditor has the 

. authority to direct an executive agency or officer to seek 

amendments to the laws or to evaluate the agency or 

officer on the basis of whether such amendments are 

sought. The answer to your question is clearly %o." 

It is well established that a state agency has only 

those powers expressly granted to it by statute or 

necessarily implied from the statutory authority conferred 

or duties imposed. Citv of Sherman V. Public Utilitv 

Commission, 643 S.W.2d 681, 686 (Tex. 1983); Stauffer v. 

Citv of San Antonio, 344 S.W.Zd 158, 160 (Tex. 1961); 

Attornev General Oninions JM-452 (1986); JM-256 (1984) ; 

MW-532 (1982); V-5Oi (1948); 0-4260‘(1942): O-3536 (1941j. 

We need not address whether any statute constitutionally 

could confer such authority on the State Auditor, because 

we conclude that no statute purports to do so. We have 

found no section of the Government Code nor any other 

statute that purports to confer such authority upon the 

State Auditor; accordingly, he has none. 

p. 4252 
Honorable Bob Bullock - Page 29 (374-872) 

SUMMARY 

1. No provision in chapter 321 of the 

Government Code, which sets forth the duties 

of the State Auditor and the Legislative 

,.Audit Committee, purports to confer 

authority on the committee to direct 

executive agencies in the manner in which 

they execute or administer the laws. 

2. No provision in chapter 321 of the 

Government Code purports to confer authority 

on the State Auditor to direct executive 

agencies in the manner in which they execute 

or administer the laws. 

3. Sections 51.005 and 61.005 of the 

Education Code are unconstitutional insofar 

as they purport to confer authority on the 

State Auditor to promulgate rules jointly 

with the College Coordinating Board. 

4. Legislative committees properly may 

gather information and conduct investigations upon any matters about which legislation may be enacted. 

5. Because the Texas Constitution 

reposes in the legislature sole authority to 

propose constitutional amendments, legislative committees may gather information and 

conduct investigations in aid of such authority. However, it is questionable whether a 

mere decision by the Legislative Audit 

Committee and the State Auditor to so 

investigate, under the guise of conducting 

an "economy and efficiency audit" or an 

"effectiveness audit," is sufficient to 

permit such a serious intrusion into the 

performance of constitutionally imposed 

duties as is here contemplated by an inquiry 

into the methods and means whereby you 

derive the budget certification/revenue 

estimate figures. This issue need not be 

decided, because nothing in the Government 

Code purports to confer the authority to 

conduct such an inquiry in the first place. 

The Legislative Audit Committee may not 

direct the manner in which the Comptroller 

derives such estimates. 

p. 4253 
Honorable Bob Bullock - Page 30 (JM-872) 

6. The State Auditor possesses 

authority either to direct an executitz 

agency or officer to seek amendments to the 

laws or to evaluate the agency or officer on 

the basis of whether such amendments are 

sought. 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

IOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAELEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Jim Moellinger 

Assistant Attorney General 

p. 4254