OFFICE OF TNE 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 0r funds In Old Age 

AssIOtanoe FmdZWe are in reoelpt or your recent opinion request 

relative to ,the txnsrer of certain funds irc;n the State’ Old 

Age Aaslstanoe Fund to the Federal Old Age Assistsnae 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 on an equal basis, I. e., the Federal Government 

has matched State payments to pensioners dollar iOr dollar. 

The-aUnIstration Of the ?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 or dlsttlbuted 

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~ 

.aud needs. From time to time the soolal Seo&ty Board Kas 

made audits 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, 

and appeal 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 amounts heretofore 

shown as adjustments have bean Oarefulg checked and this 

agency la In agreement with the Sooial Gaourity Board that the 

Federal Old Age AaaIstanca Fund should be reimbursed due to 

the adjustments as shown ior the various periods In accordance 

with the audits submitted by the Federal Auditors.” 

The State Department of Fubllo 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 by the 46th Leglalature oreated the “State Departmeht of Fubllc Gelfaran, 

which among other things wss organized to administer asalstanaa 

to tee needy aged, The duties of t5e Texas Old Age Aaslstanoa 

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 6 oi 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 George H. Shappa$d, page 3 

Saotlona 26 and 27 bt the lot of 19&l read a8 

rollowa t 

*sea. 26. All asslatanoa payments rovldad for 

under the tams oi thla Aot ahall ba pa B d by vouohara 

or warrants drawn by theState Comptroller on the proper 

aooounts of a *State Department of Dub110 Welrara Fund*; 

ror the purpose of parnittlng the State Comptrollerto 

properly draw and Issue auoh vouohars or warrants, the 

StateDapartment of Pub110 Welrara shall furnish the Comptwollar with a list of or roll oi those entitled to asalatanoa iron time to time, together with the amount to whloh 

each raolplant la entitled. When auah vowhan or warrants 

have barn drawn they shall be delivered to the haoutlva 

Director of the State Dapartnent of Fubllo 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 Old Age Asslatanoa Fund, the 

3lind Assistance Fund, and the Children Aaalstanoe Fund, 

aa provided for in HoLae Bill No. 8, Aota of tine Fortyseventh 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 18 hereby daalgnatad 

aa the opstodlan of any and all money whloh may be raoelvad by th? State of Texas (whloh the State Dapartmant 

of public Welfare la authorized to admlnlater), from any 

appr>prlatlons nreda by the Congress U the United States, 

ror the purpose of cooperating with the several provlmlons 

’ of the Federal Social Security Aot, and all money raoaItad 

from any other source; and the State Treasurer la ha?aby 

authorized to reoelve auoh money, pay It Into the propar, 

fund or the proper aooount of the Caneral Fund of the 

State Treasury, provide for the proper ouatody thereof, ~\, 

and to make dlsbursaments therefrom upon the order of tha 

State Department and upon warrant of the State Comptroller 

of Public Aocounta.’ !a, 
Honorable Cecrga B. Sheppard, page 4 

Tha Padoral money mentioned in 27(Z), quoted above 

la deposited with the State TraaaureS by vlrtua or an Rot or 

Congress. Sad. &2 U.S.C.A. ( ) O)Ol., 393. The Stats monies 

in the=sparata aooouuta designated as the Old Age Aaalatanoa 

Fund of the State ~apartmant of Pub110 %aliara Fund era 

derived iron tsxea levidd and oolleotad bp tha Stats or 

Texas and allooatad to this apaolal fund In the 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. We assume the "State Old 

Age Aaaoolatlon Fund* snd tha RFederal Old Age Aaaistanoa Fund-, 

whloh are not mantlonad In the lagIslatl~a act, are separate 

aooounta In the Old Age Aaalatanoa Fund propr, whloh you have 

set up to iaollltata the kaaplng Of adequate records and a 

proper aooountlng between the Federal and State Governments 

In their oontrlbutlona to such fund. 

It la stated In the letter of August lgth, aooompanyIng the request that the quarterly payments had6 by the Soolal 

Saourlty Board are only a tentative basis, are not final 

payments to the 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 . We express no opinion with reference to these matters, 

however. 

hrtlola VIII, Seotlon 6, of the Texas Constitution 

rexda in part as iollowsr 

wNo money shall be drqwn rromthe Treasury but In 

purauanoe of spaclrlo appropriations made by law; nor 

shall any appropriation of money be made #or a longer 

term than two years, .l,. .I) 

The Board has not requested that you draw a werrant 

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 Old A&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 of form and not of substanoe. Thw whole basis 

and purpose of this proposed transfer of funds Is it) <pay or 

discharge the olaim amde by the Sooial Seourity Board against 

the State, and&though the immediate action may not 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 of money from the treasury 16r that 

purpose may not be done by lndlrectlon in the absented approv 

riate legislative authorization. 

T.C.A.) 136 S. W, (26) 975.0 

MaCombs v. Dallas County, 

It is also a well established principle of law in 

this jurisdlotlon that a Department, suah aa the State Department of Public Welfare, w&lch is a creature of the statute 

has only authority &a may be delegated to it by the 

Legislature, either expaeesly or by neoesaary impllaatlon. 

We find nothing in the PublioWelfare Act of 194l 

which would authorize this aotion, but on the contrary it direots 

that the State money in the Old Age Assistance Fund be used to 

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 Age Asslstanoe Division, out of tk Old Age Asslstanoe Fund, 

after listing various administrative expendas, provides: 

“All lnoomer allooated or transferred to the Old Age 

Assistmoe Fund by H. B. NO. 8, Aots of the 47th Legislature, Regular Session, or other revenue laws, for the purpOS0 of 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 and for 

salariee, muipment, supplies. travel malntenanoe. ?nd aontinKent expenses neoesaary in the extenplon of said old& 

assistanoo, . . .I (Emphasis Sansa) 

In our opinion the above appropriation is not euffioient 

to author184 the payment of this claim whioh has aoaumulated 

over a period of years 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 by Artlole XX, Seation 2(4) of If. 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 

be paId therefrom into the Old-Age Assistanoe Fund on 

the first of eaoh month, 8uoh aurn, whlah, taken with 

other 8ums paid Into ruah Old-Age A88lstanoe Fund by 

virtue of othar law8 still In foroe will equal a total 

o? One Million Seven Hundred Fifty *housand ($1,950,000.00) 

Dollarr, ad 8U8h 8UlE 18 hereby appropriated for the'U8e 

provided by law for 8uoh Old-Age Asri8tanoe Fund. Should 

auoh payment8 iaSb thr Old-Age A88irtanoe Fund by virtue 

of other lavir exored One Million Saven Hundrrd Fifty 

Thou8and ()1,750,000.00) DOllar8, In any one month, 

then not more than One Million 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 in from the 

Clehrance Fund into the Ol&kge Asslstsnae Fund 8hall 

be reduced scoordlcgly to the end that a stationary 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 be made In the same manner 

as provided above. However 

fro3 all sources Into the 01 

age we?t the total paid 

A 'Assistance Fund including 

the amount allocated to the 01 Age Assistance Fund from 

the Clearanoe Fund on the first day of eaah month as provided above, does not amount to One Million Seven Hundred 

Fifty Thousand ($1,750,000.00) Dollars for each month after 

t&e ccfeotive date of this aat, then in that event, the 

first revenue oolleoted and which ordinarily would be paid 

Into the General Revenue Fund of the State OS Texas 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 One Million Seven Hundred FlSty Thousand 

($1,750,000.00) Dollar8 Jm thr 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 George II. Sheppard, pago 7 

. 

It 18 our OpiniOn that your Department i8 not 

authorized to make the transfer of funds as requested by the 

State Department of Publia Welfare. WS do llOt eX 1888 EUly 

opinion with reference to the authority of the leg f datum 

to make an appropriation 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 

ATTORJXY G?Z?RAL OF TEXAS 

By # Cecil C. Cammaok 

Aeeistant 

ccc;A!m 

Ok G.B.L. 

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