OFFICE OFTNE ATTORNEY GENERAL OF‘I’- Qourot%llucn AUBnN A7ummwmmtau

Honorable George H. Shepgard Comptroller o?Pub110 Aooountr Austin, Texas

Dear Slrr
OpInIon No. O-3830 Re: Transier 0rfunds In OldAge AssIOtanoe FmdZWeare in reoelpt or your recent opinion request relative to ,the txnsrer of certain funds irc;n the State’ Old AgeAaslstanoe Fund to the Federal Old AgeAssistsnae Fund, rshlch the State Department of Fublic Welfare has requested you to nake.

There are berore us twc letters from the Department oi Publio Welfare, one dated July 26, 1941, the other dated August 15, 19&l, from which xe understand the iaots to be as tallows:

Sine6 July 1, 1936, the Federal and State Governments have heen oooperating in making payments ior old age aasistanoe onan equal basis, I. e., the Federal Government has matched State payments to pensioners dollar iOr dollar. The-aUnIstration Ofthe ?edbrrdl Soolal SOOUrlty Act IO vested In the Soolal Seourlty Board whloh has made various rules and regulations and Is oharged with the duty oi determining that the Federal monies are expended ordlsttlbuted in aooordanoe with the Federal Soolal Seourfty Aot. Eaoh quarter the Federal Oovernment has forwarded It6 pro rata part of the penalon money to the State Agenoy, based upon estlaates, and the State agenoy eaoh month has **made**the aotual dIsbursemoMs tc Individuals after determinine their ellulbIlIt~ .audneeds. Fromtime to time the soolal Seo&ty Board Kas madeaudits of the payments to various reoiplents, **and**at present audits 1938, 1939, have been oompleted ooverlng the periods 1936, 1937,

and 1940.Honorable Caorga R. Sheppard, page 2

At the completiBn of each audit period the Social Security Board took exceptions to various payments by the State agency and presented aartaln schedules ot Vlscal and allglbllity axoapt ions*. After alaarance material had bean submitted by the State agency in justlticatlon ot the payments, andappeal perfected to the Social Security Board, said Board rlnally disallowed and refused to aoncur In payments made to certain reclpiente from July 1, 1936, to D?oember 31, 1939, In tha total arm or $23 662.87. In the latter or July 26, 194l, mentioned above, It 1s stated that *the amountsheretofore shown as adjustments have bean Oarefulg checked and this agency la In agreement with the Sooial Gaourity Board that the Federal OldAgeAaaIstanca Fund should bereimbursed dueto the adjustments as shown ior the various periods In accordance with the audits submitted by the Federal Auditors.”

The State Department ofFubllo Vialfare has tharatora requested you to transfer #23,662.87 tron the State Old Age Assistance ?Ud to the Federal Old~Age Assistance Fund In setl~fnctlon of this clslm by the Social Security BoaQd. You request our advice as to whether you are authorized to make this tranarer.

The Public :‘1alfare Aat,. enacted bythe 46th Leglalature oreated the “State Departmeht ofFubllc Gelfaran, which among other things wss organized to administer asalstanaa to tee needy aged, The duties oft5e Texas Old AgeAaslstanoa Cammlaslon, together with its funds,ware trenstarred to such nawlg created Dapartnen5. This act was amended by the WPubllo walrare Act or 1941*, 17th Leglalqtura, a+ractIve July 2, 194l md in general continued the same sdalnistratlve arganization

as that provided by the Act of 1939.

Under Section I of the “Fubli& ‘:‘altare Act of 191,1w, the Ptate Departcent of Public :7elf’are is charged with the admlniatratlon of the walrara activltlas of the State as provided therein, and it la provided that II shall WadmInIater aaaiatanoa to the needy aged.” Seotion 6oi aaid Aot daalgnataa the State Department as the State agenoy to oooperata with ths Federal Government In the administration oi the provision8 of the Federal Soolal Security Aot, Including the payment of asslstan~ to the needy aged.t

Honorable GeorgeH. Shappa$d, page 3

Saotlona 26and27bt the lot of 19&l read a8 rollowa t

*sea. 26. All asslatanoa payments rovldad for

under the tams oi thla Aot ahall bapaB dbyvouohara
orwarrants drawnby theState Comptroller onthe proper aooounts ofa *State Department of Dub110 Welrara Fund*;
ror the purpose ofparnittlng the State Comptrollerto properly draw and Issue auoh vouohars or warrants, the StateDapartment of Pub110 Welrara shall furnish the Comptwollar with alist of or roll oi those entitled to asalatanoa iron time to time, together with the amount to whloh each raolplant la entitled. Whenauah vowhan or warrants have barn drawn they shall be delivered to the haoutlva Director ofthe State Dapartnent ofFubllo Welfare, who in turn shall suparvlaa the delivery of same to the parsons entitled thereto.

aSac. 27. (1) For tha Ruwposes of oarrylng out the provlalona of this Act, the OldAgeAsslatanoa Fund, the 3lind Assistance Fund, and the Children Aaalstanoe Fund,

aa provided for in HoLae Bill No. 8, Aota of tineFortyseventh Legislature, Regular Seaaion are hereby made separate aooounts of the ‘State Department of Publlo Welfare Fund* as oraated by this aot. Provided, that all moneys In the saparate aooounts at tia State Dapartmentor Pub110 Welfare Bund shall be expanded only for the purposes of oarrylng out the provlalons of this Act, and for the purposes for which said separate acoounta
were created or appropriated.
e(2) The State Treasurer 18hereby daalgnatad
aa the opstodlan of any and all money whloh maybe raoelvad by th? State ofTexas (whloh the State Dapartmant of public Welfare la authorized to admlnlater), from any appr>prlatlons nredaby the Congress U the United States,

ror the purpose of cooperating with the several provlmlons ’of the Federal Social Security Aot, andall money raoaItad from any other source; and the State Treasurer la ha?aby authorized to reoelve auoh money, pay It Into the propar, fund orthe proper aooount of the Caneral Fund of the State Treasury, provide for the proper ouatody thereof, ~\, and to makedlsbursaments therefrom upon the order oftha State Department and upon warrant of the State Comptroller ofPublic Aocounta.’ !a,Honorable Cecrga B. Sheppard, page 4

ThaPadoral moneymentioned in 27(Z), quoted above la deposited with the State TraaaureS byvlrtua or anRot or Congress. Sad. &2U.S.C.A. ()O)Ol., 393. TheStats monies in the=sparata aooouuta designated as the OldAgeAaalatanoa Fundof the State ~apartmant of Pub110 %aliara Fund era derived iron tsxea levidd andoolleotad bp tha Stats or Texas and allooatad to this apaolal fund Inthe State Treasury
or by appropriation by the Laglalatura iron another fund ln the treasury. For example, sea House Bill No.8, Aota l,7th Legislature, Regular Session. Weassume the "State Old AgeAaaoolatlon Fund* snd tha RFederal OldAgeAaaistanoa Fund-, whloh are not mantlonad In the lagIslatl~a act, are separate aooounta Inthe OldAgeAaalatanoa Fund propr, whloh you have set upto iaollltata the kaaplng Ofadequate records and a proper aooountlng between the Federal andState Governments In their oontrlbutlona to such fund.

It la stated In the letter of August lgth, aooompanyIng the request that the quarterly payments had6 bythe Soolal Saourlty Board are only atentative basis, are not final payments tothe State, and are aubjeot to review by the Federal authoritlaa. For the purpose of this oainlon we~111 eaa&‘oe the correctness of t?ia atstenent and ~111 aaauze further thati such runda are deposited in trust *tit& tie State agency to be distributed as directed by the Sootal Security Board, that the exceptions of said Board ror the pa8lods audited were well taken, and that the Federal CoverlLaent has a.vslld claim torrelmbursement

. Weexpress noopinion with reference to these matters, however.

hrtlola VIII, Seotlon 6, ofthe Texas Constitution rexda in part as iollowsr

wNomoney shall bedrqwn rromthe Treasury but In purauanoe of spaclrlo appropriations madeby law; nor shall any appropriation ofmoney bemade#or alonger term than two years, .l,. .I)

The Board has not requested that you draw awerrant payable to the Federal -Oovernme.nt and thua wlthdraw this money from the treasury ln pamant of the olala, but Instead has requested that the Federal Govarnaaatqa aooount in the OldA&a Aaalatanoa Fund be oradltad with the ano,-nt of the olalm and oharged against the State aooount in aatlaiaotlon of such ola4.m. Any dlf~arsnoa between the above twc situations would.

Honorable George ?I.’Sheppard, page 5

srem to be one ofform andnot of substanoe. Thwwhole basis and purpose of this proposed transfer of funds Is it)<payor discharge the olaim amdeby the Sooial Seourity Boardagainst the State, and&though the immediate action maynot be one of withdrawal from the treaeury, that ir neoessarllp its ultimate result and purpose. In our opinion the payment of this alaim and withdrawal ofmoney from the treasury 16r that purpose maynot be done by lndlrectlon in the absented approvriate legislative authorization. T.C.A.) 136 S. W,(26) 975.0 MaCombsv. Dallas County,

It is also awell established principle of law in this jurisdlotlon that aDepartment, suah aa the State Department of Public Welfare, w&lch is acreature of the statute has only authority &amaybedelegated to it by the Legislature, either expaeesly or byneoesaary impllaatlon.

Wefind nothing in the PublioWelfare Act of 194l which would authorize this aotion, but onthe contrary it direots that the State money in the OldAgeAssistance Fund be usedto furnish ass!stanoe to old persons who satisfy the requlreaents provided in:said aot.

The ourrent appropriation to the State Department of Publla Welfafr, (S.B. No. 423, Aats f,7th Lgg., Regular Session) Old AgeAsslstanoe Division, out of tk Old AgeAsslstanoe Fund, after listing various administrative expendas, provides:

“All lnoomer allooated or transferred to the OldAge Assistmoe FundbyH.B. NO.8, Aots ofthe 47th Legislature, Regular Session, or other revenue laws, for the purpOS0of providing and administering old age assistance is hereby appropriated for eaoh of the fisoal years ending August 31, 1942, and August 31, 19l,3, tothe State Department o? Pub110 Welfare for old age assistanoe payments andfor salariee, muipment, supplies. travel malntenanoe. ?nd aontinKent expenses neoesaary in the extenplon of said old& assistanoo,

. . .I (Emphasis Sansa)

In ouropinion the above appropriation is not euffioient to author184 the payment of this claim whioh has aoaumulated
over aperiod ofyears since July 1, 1936. oh odly aontezplates the current payment of old age assistanoe to needy reolpients and adminlstratire expenses in connection therewith, This oonoluslon Is supported byArtlole XX,Seation 2(4) ofIf. B. MO.8, ;taayded by 8. B. No. 190, Aota &7th Leg,, Regular Session, whio

:Honorlblr Goorgr H. Sheppard, Paga 6

"(4) After the above allooatlon and payments have been made from ruah Olearanoe Fund, there rh8ll bepaId therefrom into the Old-Age Assistanoe Fundon the first of eaoh month, 8uoh aurn, whlah, taken with other 8umspaid Into ruah Old-Age A88lstanoe Fund by virtue of othar law8 still In foroe will equal atotal o? OneMillion Seven Hundred Fifty *housand ($1,950,000.00) Dollarr, ad 8U8h8UlE18hereby appropriated for the'U8e provided bylaw for 8uoh Old-Age 

### Asri8tanoe Fund. Should auoh payment8 iaSb thr Old-Age A88irtanoe Fund by virtue of other lavir exored OneMillion Saven Hundrrd Fifty Thou8and ()1,750,000.00) DOllar8, In any one month, then not more than OneMillion Sersn Hundred FIity Thousand (#1,750,0OO.O0) Dollar8 o?8uoh 8hall be expended for old-age 

### ar8istanoe In such month, and the remfalnbrr in exOe88 thereof shallb5.tithheld until the suooeeding month or months and be taken Into oonslderation In allooatIng fund8 from the Clearance Fund to the Old*Age Assistanoe Fund, and.the amonnt paid infrom the Clehrance Fund into the Ol&kge Asslstsnae Fund 8hall bereduced scoordlcgly to the end that astationary sum of Ona“illion Seven Hundred Fifty Thousand ($1,750,000.00) Dollars per nohth'be avaiiable frcn State Funds for 016 age assistance; provided, however, for the balance of the figoal veer ending August )1, 194l, the payments into the ZlO-Age Assistance Fund shall bemade In the same manner as provided above. However fro3 all sources Into the 01age we?t the total paid A 'Assistance Fund including the amount allocated to the 01 AgeAssistance Fund from the Clearanoe Fund onthe first day of eaah month as provided above, does not amount to OneMillion Seven Hundred Fifty Thousand ($1,750,000.00) Dollars for each month after t&e ccfeotive date ofthis aat, then in that event, the first revenue oolleoted andwhich ordinarily would be paid Into the General Revenue Fund of the State OSTexas after the fIrat day of eaoh month shall be set aside, allocated, traneferred, oredited, and appropriated to the Old-Age Assistanoe Fund to the extent and In rush sums a8 are necessary to provide OneMillion Seven Hundred FlSty Thousand ($1,750,000.00) Dollar8 Jmthr Old-Age 

### A88istanos Fund for esoh month with the effeotlve date of thi8 Aot, lnoludlng the month o? June, 1941, and through the month of AUgU8t, 1941. All laws in confllot with this seotlon are hereby repealed to the extent of suoh oonfliot only.*.

.

Honorable GeorgeII. Sheppard, pago7 .

It 18

### ourOpiniOn that your Department i8 not authorized to make the transfer offunds as requested by the State Department ofPublia Welfare. WSdollOt eX1888 EUly opinion with reference to the authority ofthe f leg datum to make anappropriation or any other question whloh may arise in oonnectlon with this matter, it being unnecessary ta do so in answering the que-tlnn presented.

Yours very truly

ATTORJXYG?Z?RALOFTEXAS

By#Cecil C. Cammaok

Aeeistant

ccc;A!m

OkG.B.L.

4PmOvED Opinlor Com3l~tee BYB.W.B. Chairman