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

DearMr. Bullock:

YOU tion and that.set ask sixquestions 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 ofthe 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 inTexas: case or anyAttorney General these are issues of first The firstbill withwhich you impression.
are concerned, House Bill No. 699 [hereinafter H.B. 6991amends the Government Code by adding several sections to chapter 321governing 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, 56at 5876-5889. The second billwith 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 firstpresent a brief history of the position of State Auditor inorder that wemay place in perspective the scope of the 1987amendments. . audits and effectiveness audits under section 321.0133 of the Texas Government Code, and related questions (RQ-1279)

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?

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. Hewas to be '*aninvestigator of all custodians ofpublic funds and disbursing officers ,of the State andpersonnel ofdepartments." Acts 1929, 41st L-3., 1stC.S., ch. 91, 51,at 222. Hewas granted the authority "to inspect all thebooks 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.I1stC.S., ch. 91, 53,at 223. Section 4of the act provided the following:

Inaddition 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 thework done by the subordinate employees inthe several departments of .the State Government.

Upon completing the examination of any department he shall furnish thehead of said department with a report on (a)the efficiency of the subordinate employees; (b)the status and condition ofallpublic 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 forcollection 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 notbeen enforced. ?

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of accounts for everydepartment of State. He shall alsomake recommendations to the said head of the departments for the elimination ofduplication and inefficiency. A copy of each such report submitted by said officer to thehead of thedepartment 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 ordischarge any state employee other than those herein authorized tobe appointed byhim forhis department.

Acts 1929, 41st Leg.; 1stC.S., ch. 91, 54,at 223. And finally, he was required, at section 5,to prepare a report showing the status ofallpublic funds inthe state and to +ecommend to the Legislature such changes as he deems necessary toprovide uniform, adequate and efficient systems of records and accounting in each department." Acts 1929, 41st Leg., 1stC.S., ch. 91, 55,at 224.

The 1929 actwas repealed in 1943. The position was renamed "StateAuditor," and appointment power was vested inthe newly-created Legislative Audit Committee, a joint interim committee of the legislature. Acts 1943, 48th Leg., ch.293, at 429 [codified atV.T.C.S. arts. 4413a-13 through 4413a-241. Section 7of 1943 act continued to repose intheAuditor 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 hewas authorized: "TO require such changes in the accounting system or systems and record or records ofany office, department, board, bureau, institution, commission or state agency, that 'in his opinion will augment orprovide auniform, adequate, and efficient system of records and accounting." Acts 1943, 48th Leg., ch. 293, §7(3), at 431. Section 8of the 1943 act also required theAuditor toprepare, again, a report forthe 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 8also set forth the following:

p.4227Honorable 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 

### properlycoming within his jurisdiction, which isto see that the laws passed by the Legislature dealing with the expenditure ofpublic moneys are inall respects carefully observed, and that the attention of the Legislature isdirected to all cases of violation of the law and to those instances where there isneed for change of existing laws or thepassage of new laws to
secure the efficient 'spending of public funds. The State Auditor shall not include inhis 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,

### at432. And finally, section 10 of the act authorized the Legislative Audit Committee to conduct hearings with thehead of any agency where theAuditor 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 itseeks, the act remained unchanged until 1985. At that time, the articles governing the Legislative Audit Committee and the State Auditor were recodified inanonsubstantive revision andplaced inChapter 3of the newly-enacted Government Code. House Bill No. 699and House BillNo. 2181, the two bills about which you inquire, were adopted in 1987by the 70th session of the Legislature.

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Prior to the enactment of H.B. 699, section 321.013(a) of the Government Code provided, inter alia, that the StateAuditor shall "perform anaudit of all governmental accounts, books, and other financial records ofany state officer ordepartment." define "audit," but section The chapter did not 321.014(a) provided that the Vtate Auditor shall conduct each audit asdirected by the committee and as prescribed by this chapter." With the passage ofH.B. 699, section 321.013(f) of the Government Code now confers authority on the StateAuditor to conduct various types of audits, specifically "financial ~audits, compliance audits, economy and efficiency audits, effectiveness audits, special audits, and investigations
asdefined 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 isan audit to determine:

(1)whether the audited entity is managing or utilizing its resources, including state funds,personnel, property, equipment, and space, inan economical and efficient manner:
(2)causes of inefficiencies oruneconomicalpractices, 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 isan audit to determine, according to established designated prcgram objectives, responsibilyf ties or duties, statutes and regulations, program performance criteria, or program evaluation standards:

p.4229Honorable 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 auditmay be scheduled only when the audited entity is not scheduled forreview 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 isrequired then to report to the legislature any refusal by the administrative head or the governing body of the agency tomake changes recommended by the committee.

You first askwhether section 321.016 of the Government Code, asamended byH.B. 699, isunconstitutional to the extent that itpurports to give the Legislative Audit Committee the authority to order changes in the way in which legislation is implemented oradministered 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 thehead of the agency,

p.4230Honorable 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 fromthe 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 andmay 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 tomake the changes recommended by the committee at thehearing orprovide 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 itseffective agent, the StateAuditor, 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 tomake recommendations to the legislature regarding the elimination of duplication and inefficiency. The 1943act attempted to expand the authority of thenewly-named State Auditor by conferring upon him thepower, not only to report to the legislature recommended changes, but todirect the administration or execution of the laws by requiring each agency to installwhatever method ofaccounting 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 ofpersonnel," thenewly-created Legislative Audit Committee was required to report to the legislature
as awhole any refusal ofagency officials to remedy those identified problems. And with the 1987 amendments to the recently-codified Government Code, the State Auditor appears tobe empowered to "audit" not just the efficiency and cost effectiveness of anagency's performance, but also the substantive performance of the tasks and responsibilities imposed by lawon an executive agency,

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

. todetermine whether there ;eZormance." Itappears, is "ineffective program forexample, that inquiry into whether the College Coordinating Board, for instance, is in fact carrying out its statutory responsibilities rests
nowwith the Legislative Audit Committee rather than with the Committee on Higher Education in the House of Representatives andwith the Committee on Education inthe 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 shallbe divided into three distinct departments, each ofwhich shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one, those 'whichare Executive to another, and those which are Judicial to another: and no person, or collection ofpersons, 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 (setforth 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 isthe 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 ofReDresentatives, 687 P.2d 622 (Kan.1984); General Assemblv of the State ofNew Jersev v. Bvrne, 448A.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.4232Honorable 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 senatemembers and five house members. The committee 

### wasgiven the authority to approve numerous transactions, including the receipt of tuition payments and transportation aidby school districts. This office held that only somuch of the act that created a joint legislative advisory committee to study school laws
asan aid to their recodification 

### wasconstitutional; the provisions reposing in the committee the authority to administer the lawwere unconstitutional.

It isthe function of the legislative branch of the government tomake the laws: it is the function of the executive branch of the government to administer and execute those laws. Inthe statute under consideration, the Legislature of the State ofTexas has undertaken not only todeclare what the law shall be,which isclearly its prerogative, but has alsoundertaken 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.ofthe Constitution of the State of Texas. the Legislature is powerless to clothe itself, oranortion of its members. with executive authoritv. 

### (Emphasisadded.)

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 ofappropriations or specific approval of the expenditure ofappropriated fundsby 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 eachbranch. 'Legislative' means 'making, orhaving the power tomake, a lawor laws.' Webster's New International Dictionary (2d Ed. 1938). This includes making and itemizing appropriations. 'The power to itemize

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

appropriations isa legislative power which itmay exercise if itsees fitas lona the matter is in its hands.
. . . Tit: legislation is complete when the ;zEp;iation ismade.' -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 anddisbursement 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 notbe 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 (2dEd. 1938), in its definition of 'executive,' uses the phrases 'or carrying into effect'
. . . 'or secures their dueperformance.' 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 ina 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** ofboth houses of the legislature effectively toveto 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
anadministrative agency is an executive function; it is therefore impermissible under article II, section 1of the Texas Constitution, forthe legislature or one of its committees tousurp the function. See Walker v. Baker, -7

p.4234Honorable 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).

Inpassing upon the constitutionality of any statute,
we begin with apresumption ofvalidity. 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 inaway that comports with the constitution, ifany such reasonable c'onstruction ispossible. 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 ofCode 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 theway 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 tomake recommendations to thevarious executive agencies, recommendations that each agency may ignore. However, subsection (d) provides that, if any agency refuses toaccept any such recommendation, the committee isrequired to inform the legislature as awhole of that fact. Subsection (d)permits an ill-disguised attempt by the committee todirect themethods bywhich investigated administrative agencies execute the laws.While it is true that the committee itself technically isnot 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 ofauthority does not resolve the article II, section 1, issue. Subsection (d)clearly acts in apunitive, and perhaps in 6 coercive, fashion that is tantamount to a legislative usurpation of executive power, inviolation 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 thosematters aboutwhich itproperly could enact legislation, a subject thatwe will address more fully inanswer toyour fourth and fifth questions. We question only thepropriety ofmaking acommittee's report to the legislature as a whole mandatory upon an administrative agency's refusal to comply with the committee's recommendations.

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As amatter of law, the committee does not have the authority to order any executive agency to implement or administer any law inanyparticular manner, anymore than ithas authority to direct officers inthe 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 isreposed by statute in.so-called "legislative agencies," see. e.g., Gov't Code, §§326.001-326.003, is greater, 'ofcourse. 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 inwhich it implements or administers any law;however, subsection (d)of section 321.016 does authorize an impermissible intrusion by the legislative branch intoareas of administration reposed by the Texas Constitution in the executive branch. Insofar as that subsection requires the committee to report to the legislature as awhole inthe event that an administrative agency fails to adopt itsrecommendations, subsection (d) isunconstitutional.

You next askwhether 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 orwhether his proper role is investigatory only. Aswe noted earlier, the position of State Auditor was created in 1943 to replace an executive officer, the "StateAuditor and Efficiency Expert," appointed by the governor. Acts 1929, 41st Leg., 1stC.S., ch. 91, at 222. The 1943 act repealed the 1929act, created the Legislative Audit Committee, renamed the position "State Auditor," and conferred authority on the committee to appoint him. There isno question that the State Auditor isan appointee and anagent 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 alsoAttorney General Opinions MB-192 (1980): H-1063 (1977);V-504 (1948). Accordingly, we conclude that the State Auditor isa subordinate of the legislative branch.

For the reasons set forth inanswer toyour first question, ifwewere to construe chapter 321 as conferring
on the State Auditor the authority to order any changes in theway inwhich executive agencies administer the laws,
wewould be constrained todeclare any such provisions

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

unconstitutional as aviolation of article II, section 1, of the Texas Constitution. And, again, for the reasons set forth inanswer toyour first question, we do not construe anyprovision of chapter 321 of the Government Code as conferring authority on the State Auditor to order executive agencies to change theway inwhich statutes are implemented oradministered. Ifthe State Auditor were part of the executive branch whose activities were directed, as theywere 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 andduties of the StateAuditor andprovides:

(a)The State Auditor shall conduct audits ofalldepartments, including institutions of higher education, as specified in the audit plan. At the direction of the committee, the State Auditor shall conduct
.anaudit or investigation of any entity receiving funds fromthe state.

(b)The StateAuditor shall conduct the audits inaccordance 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 shalldetermine 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 shallprovide forauditing of federal programs at least once ineach fiscal biennium and shall ensure that audit reguirements of allbond covenants and other credit
or financial agreements are satisfied. The committee shall review and approve the plan.

p.4237Honorable 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 anydepartment or entity subject to audit, including access to all electronic data. However, the State Auditor has access to information anddata the release ofwhich is restricted under federal lawonlywith 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 StateAuditor may conduct financial audits, compliance audits, economy and efficiency audits, effectiveness audits, special audits, and investigations as defined by this chapter and specified inthe audit plan.
(g)To the extent that theperformance of the powers andduties 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 tobooks, accounts, vouchers, records, ordata under Subsection (e)soaspnot tohinder 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 ifthe entity is subject to audit by another state agency for the taxes or fees.

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

.

(i)Ifthe StateAuditor decides achange inan accounting system isnecessary, the State Auditor shall consider the present system of books, records, accounts, and reports to ensure that the transition will be gradual and that thepast 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 inthese sections or in section 321.016, purports to confer any authority upon the State Auditor to direct the activities of state agencies.

Inyour third question you ask whether sections 51.005 and 61.065 of the Education Code, asamended by H.B. 2181, are unconstitutional insofar as they purport to allow the State Auditor, anagent of the legislative branch, to prescribe administrative rules for state institutions of higher education. Prior to the 1987 amendments, the authority toprescribe such administrative ruleswas reposed solely in the College Coordinating Board. Ina letter accompanying abrief submitted to this office by the State Auditor, it isurged that, if it is constitutional forthe legislature todelegate to amember 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 amember 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 andby the employees of the institution of all funds collected fromall sources and of all sums paid out and thepersons towhom and thepurposes 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 onhand. The report

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

.

shall show the true condition of all funds
asof theAugust 31preceding aswell 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 frthat 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 andduvlicative 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 ofwhich aDDroDriations shall be made and financial records shallbe 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.4240Honorable Bob Bullock -Page 17 (JM-872)

Business Officers. The accounts of the institutions shall bemaintained and audited inaccordance with the approved reporting system.
(b)The coordinating board shall annually evaluate the informational requirements of the state forpurposes 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 italone. 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 tomake 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 .principlesas if itwere the act of the legislature. Texas Licuor Control Boardv. Attic Club, Inc., 457 S.W. 41 (Tex.1970). Nevertheless, when such rulemaking power isvested inanagency of the state, it isregarded as an incident of the executive power to administer laws enacted by the legislature, andnot asapower to enact laws. It isheld 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.4241Honorable 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 fixrat& is legislative power).

Thepower to control or correct decisions committed to administrators by law isan executive,function. Walker
v. Baker, m. The legislature, of course, may in the first instance severely restrict the discretion of executive officers oradministrators tomake rules by so thoroughly detailing legislation before it leaves its ambit that little or noroom is left for administrative interpretation. &g Fire DsDartment fCitv of FortWorth
v. Citv of Fr-tWorth 217 S.W.2d 664O(Tex. 1949); Advisory No.O2 (1973): Letter And, by theproper exercise of its law-making powers, the legislature may supersede or repeal any agency rule ordecision 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 andpromulgate rules inorder tobetter administer the legislative policy embodied therein, neither the legislature nor any of its committees may direct that agency regarding themanner inwhich the executive discretion is thus reposed. Tex. Const. art. II, 51.

Ifadiscretionary Nlemaking function delegated to
an administrative agency isan executive function --aswe think it is -- it is impermissible for the legislature (or
one of its committees) tousurp 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 alsoAnderson (Colo. 1978): Ine r ni i ofv. Lamm, 579 P.2d 620 the Justices to the Governor, 341N.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 alsoviolate article III, section 1, of the Texas Constitution, even if the powers conferred could be said tobe purely legislative incharacter. It was held inParks v.West, 111S.W. 726 (Tex. 1908), and reiterated in Walker v. Baker,m, that where the constitution gives apower andprescribes themeans by

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

which or themanner inwhich it is tobe exercised, such
means ormanner isexclusive ofall others. Article III, section 1,of the constitution vests the legislative power of the state "ina Senate andHouse of Representatives, which together shallbe styled 'The Legislature of the State of Texas."' Sections 29through 40of that article detail atgreat length themanner inwhich the legislature. must exercise its right to legislate. Because the means bywhich the legislature isto accomplish the enactment of laws is expressly provided by the constitution, any authority for the legislature to exercise that right in a different mode isexcluded. 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 inarticle II, section 1,apply, to

a "collection ofpersons" of the legislative department. Itwas held inEx carte Younablood, 251. S.W. 509 (Tex. Crim. App. 1923), thatwhen a power conferred by the constitution upon the~legislature or either branch thereof is inturn conferred by the constitutionally designated legislative body upon a committee composed ofmembers of thehouse and senate, the committee isa "collection of persons" within theproscription of the foregoing constitutional provision --and one to which non-legislative powers cannot bedelegated. See alsoWalker v. Baker, 196 S.W.Zd 324 (Tex. 1946); Attorney General Opinions V-1254 (1951);o-4609 (1942). See alsoAnderson v. Lamm, 579 P.2d 620 (Colo. 1978); In reOvinion 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.

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

Ithas been suggested that Texas has adopted the more modern view of thedoctrine of separation ofpowers, which permits cooperation between branches ofgovernment rather than enforces arigid separation between them. It is contended that the olderview, perhaps best exemplified by Kilbourn v. Thomnson, 103U.S. 168 (1880),has been discarded in favor ofa more flexible construction of the constitutional provision. InKilbourn v. Thomnson, w, theUnited States Supreme Court set forth aclassic statement of the older construction:

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

It isbelieved tobe one ofthe chief merits of theAmerican system of written constitutional law, that allpowers intrusted to government, whether state ornational, 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 bebroadlv 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 notbe oermitted to encroach
unon the oowers confided to the others. but that each shall bv the lawof its 'creation be limited to the exercise of the vowers xrouriate to itsown deDartment and to no Ethel;. (Emphasis added).

Id. at 190-191. A statement of.the more modern view was well expressed inJ. W. Hamnton. Jr. &co. v. United States, 276U.S. 394 (1928):

Our Federal Constitution and State Constitutions of this country divide the governmental power into three branches

. . . . [T]herule is
. . .incarrying out that constitutional division into three branches it isa breach of the fundamental law if Congress gives up its legislative power and transfers it to the President or to the Judicial branch, or ifby law it attempts to invest itself or its **members** with either executive or judicial power. This isnot to say that the'three branches
are not coordinate Darts of one government and that each in the field of itsduties **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 fromanother branch. the extent

p.4244P

**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 8Tube Co. v. Sawer, 343U.S. 579at 6:: (1952). But see, Singer, 2a Sutherland on StatutorvConstruction, 53.07. The rule as stated inSutherland seems tobe:

This interpretation of thedoctrine 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 isnot anassumption of thewhole power ofanother department, and when the exercise of the other power does not jeopardize individual liberty.

Id. at 83.06 (andcases cited therein).
The'argument that.Texas adopts themore 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 andnegative power ofdeclining approval of any particular prison site proposed by the Department of Corrections. The relevant passage provides:

Webelieve that it iswell settled that this constitutional prohibition [providing for separation ofpowers] states aprincivle of government andnot a rigid classification as ina table oforganization. This provision must be interpreted along with other constitutional provisions, andwhen this is done it isclear 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 adistribution of all governmental powers; and (3) it blends legislative, executive, and judicial powers inagreat 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 atransfer of a

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

whole mass ofpowers fromone department to another and itprohibits aperson of one branch from exercising apower historically
or inherently belonging to another department. It may not be interpreted ina way that prevents cooperation or coordination between two ormore branches of government, hindering altogether effective governmental action. It was designed, as were other checks and balances, to prevent excesses. (Emphasis inoriginal).

613 S.W.2d 572 at 576.

Forpurposes 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,
ormore specifically a joint interim committee thereof, to 'appoint the State Auditor, since the appointment power, except for specific constitutional provisions reposing such authority inothers, ishistorically one that inheres inthe office 

### ofGovernor. See, Walker v. Baker, w. Because you do not ask about the constitutionality of the statute pursuant towhich 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.

InState Board of Insurance v. Betts, 308 S.W.Zd 846 (Tex. 1958), the court held that, inan instance in which the attorney fora statutory receiver foran insurance company resigned and theboard of insurance commissioners did not designate a successor, the district judge had discretionary power to appoint an attorney for the receiver, since hehad judicial control or supervision of the receivership case. The statute then in force conferred appointment authority upon the board. The court seemed to accept themodern construction of the separation ofpowers principle when itrejected achallenge 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 isonlvwhen the functioning of the --..

-I

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

-

- judicial orocess ina 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 aboutwhich you inquire permit the legislature,
ormore specifically an effective agent ofa committee of the legislature, to interfere with theproper functioning of an executive branch agency ina field constitutionally committed to itscontrol, i.e. the proper execution or administration of the law and the responsibilities duly imposed upon itby 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 noquestion that the legislature is authorized toprescribe 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.e1943, general acquiescence inacustom which may not have resulted ina harmful violation of the constitution does notnreclude acontest when substantial rights are insisted upon. Citv of LosAnaeles v. LosAnaeies City Water Co., 177U.S. 558 (1919). If itbe urged that the result thatwe reachhere isunrealistic, 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) fwhichheld that the so-called "leaislative veto" &an unconstitutional violation of the implied separation ofpowers principle of theU.S. Constitution):

. . .the fact that agiven laworprocedure isefficient, convenient, anduseful in fac- 'ilitatingfunctions ofgovernment, standing alone, will not save it if it iscontrary to the Constitution. Convenience and efficiency arenot thenrimarv obiectives -- or the hallmarks --ofdemocratic 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, inthe executive branch. Accordingly, we conclude that it isconstitutionally impermissible for the legislature to delegate to the State Auditor and the College

p.4247Honorable 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 tomy fourth guestion, my fifthquestion 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 isnot clear what legislation could constitutionally be enacted controlling themanner inwhich the
revenue estimate forbudget certification is determined, whether the State Auditor has authority to evaluate or inquire into how the revenue estimating/budget certification function iscarried out.

Courts inthis state long agoupheld the right of the legislature,to appoint committees for the purposes of conducting investigations and gathering information regarding thepossible enactment of legislation. Ex varte Fercruson;15S.W.Zd 650 (Tex. 1929); Terre11 v. Kinq, 14 S.W.Zd 786 (Tex. 1929).

The legislature has thepower to investigate any subject regarding which itmay desire information in connection with the proper discharge of its function to enact, amend or repeal statutes or toperform any other act delegated to it by the constitution.
. . . A legislature inconducting whatever inguisitions the proper exercise of its functions require, must be asbroad as the subject to which the inquiry properly entered into has relation.

Mason, Manual of Procedure, Leqislative 9795 (1970). As the Texas Supreme Court declared inTerre11 v. Kinq:

Not only does the Constitution, inthe grant of the rule-making power [bymeans of which

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

P eachhouse isempowered toorganize itself], authorize either-house toname such committees as itmay deem necessary orproper for purposes of investigation and inquiry, when looking to the discharge ofany 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 isnot absolute, see, e.a., Gibson v. Florida Legislative Investisation Committee, 372U.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 tobe limited to the obtaining of information onmatters 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 ingeneral as broad as the resolution constituting it. Exnarte Wolters, 144 S.W. 531 (Tex.Crim. App. 1912).

It isaprinciple of constitutional law that

where there is a grant of power in the Constitution to adepartment of Government,
or to aconstitutional or statutory officer,
or tribunal, without defining themanner or form inor bywhich it istobe exercised and carried into effect, the Legislature may legitimately prescribe reasonable rules by which this may be done. And though such power may notbe taken awayby the Legislature, and should it fail or refuse to legislate soas toprovide for the efficient
use and exercise of thepower, the department,officer, or tribunal towhom 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 andwill be exercised in conformity with suchprovisions.

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

Austin v. Gulf. Colorado. and Santa FeRailroad Co., 45 Tex. 234, 265 (1876). But it is in noway certain that article III, section 49a, fails to set forth themanner or formbywhich you are required toperform 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 asGovernment 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 tobe expected at the end of a biennium. The opinion concluded, 'Insofar as this bill attempts tomake estimates it isunconstitutional as a legislative invasion of the duties of the comptroller.'

Thebill at issue there, with the offendingprovision 'making estimates1 deleted, became article 4348a, V.T.C.S., still extant. The remainder of thebill, in the form itwas considered byAttorney 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 ofArticle III from its four corners, it isour opinion that this constitutional provision contemplates that the Comptroller, in making his estimate forcertification of bills,
use the cash accounting method.

Thus, article 4348a. V.T.C.S.. isto be read not as a legislative mandate defininq the Dower of the Comntroller under section 49awith resoect to certifications or estimates made forthe ourvose. but. rather. as adirection 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.4250Honorable Bob Bullock -Page 27 (JM-872)

Forpurposes of this opinion, we accept the assertion that themeans and manner bywhich youmust perform the budget certification/revenue estimate certification processes are set forth inthe constitution with sufficient specificity such that the legislature is without authority, absent aconstitutional amendment, to direct you inthemanner inwhich you carry outyour constitutional responsibilities. Itnecessarily 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, ifthepurpose for which it seeks the information'is to enact legislation. But, article XVII, section 1,of the Texas Constitution reposes inthe 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 andmethod bywhich you perform your constitutional duties ifsuch inquiry is done inaid ofdetermining the need forany such amendments.

We are not unmindful of the importance of this question: indeed, itgoes to thevery heart of the nature of the kind ofgovernment thatwe have. Texas, unlike many states; sets forth in itsconstitution the duties and responsibilities of many of its state officers. If we permit the State Auditor and the Legislative Audit Committee, under the guise ofperforming "economy and efficiency audits" or "effectiveness audits" to inquire into the
manner bywhich youperform theduties reposed inyou by the constitution of this state,we perforce would have to permit such an E'audit@' inquiry into themanner in which other constitutional officers perform their constitutional duties. We would have topermit the Legislative Audit Committee and the State Auditor to inquire into themanner bywhich 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 inwhich the justices of the Texas Supreme Court and the Texas Court ofCriminal Appeals administer their respective caseloads and deliberate and arrive at their decisions. Wewould have to permit the Legislative Audit Committee and the State Auditor to inquire into the manner inwhich the Attorney General advises and represents state agencies.

Wedo 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 thedirection orguidance instructing any such investigating committee must be reasonably specific andwhether any

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

resolution constituting such investigation must be inveighed with sufficient dignity to convey the extreme significance ofwhat isundertaken. We question whether a mere decision by the StateAuditor 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 ofmaking an inquiry into themanner inwhich 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 firstplace. Subsection (e)of section 321.013 permits theAuditor to examine, for example, whether subscription material exists, but not the use towhich it isput. Nor does itauthorize an inquiry intodiscretionary decisionmaking by you that ispersonal toyou as a constitutional officer. We add that the Legislative Audit Committee, of course, has no authority todirect you inthe manner in which the budget certification/revenue estimate figures
arederived.
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 toyour question isclearly %o."

It iswell established that a state agency has only those powers expressly granted to it by statute or necessarily implied fromthe statutory authority conferred
orduties imposed. Citv of Sherman **V.** Public Utilitv Commission, 643 S.W.2d 681, 686 (Tex. 1983); Stauffer v. Citv of SanAntonio, 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 foundno section of the Government Code nor any other statute that purports to confer such authority upon the State Auditor; accordingly, hehas none.

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

SUMMARY

1. Noprovision inchapter 321 of the Government Code,which sets forth the duties ofthe State Auditor and the Legislative ,.Audit Committee, purports to confer authority on the committee to direct executive agencies inthe manner in which they execute oradminister the laws.

2. Noprovision inchapter 321of the Government Codepurports to confer authority
on the State Auditor to direct executive agencies inthemanner inwhich they execute
or administer the laws.

3. Sections 51.005 and 61.005 of the Education Code areunconstitutional insofar
as they purport to confer authority on the State Auditor topromulgate rules jointly with the College Coordinating Board.

4. Legislative committees properly may gather information and conduct investigations upon anymatters aboutwhich legislationmay be enacted.

5. Because the Texas Constitution reposes inthe legislature sole authority to propose constitutional amendments, legislative committees may gather information and conduct investigations inaid of such authority. However, it isquestionable 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 ishere 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 inthe Government Code purports to confer the authority to conduct such an inquiry inthe first place. The Legislative Audit Committee may not direct themanner inwhich the Comptroller derives such estimates.

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

6. The State Auditor possesses authority either to direct an executitz agency orofficer 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

IOUMCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAELEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared byJim Moellinger Assistant Attorney General

p.4254