OFFICE OF THE ATTORNEY GEMERAL OF TEXAS AUSTIN

HonorableV. C. Parshall, Chairman Texas Sol1 Consarvatlon poard P. 0. Box 191 Temple, Texas Dear ~Slr:

we are In mot31 1939, in which you rs upon the followillg qu

r OXPO~SO t3000unt

ttempt to answer these questionsin hey are asked. The appropriation

ror the use of.the State Soil Conservation

Eoard In the administration of the Texas Soil Conservation

Law Is provided therein. The CaneralDapartmental Appropriation Bill oi the Forty-sixth Legislature, S. B. No. 427, does not lnolude the State Soil Consetivatlon Board among the state departmentsand agencies it covers.HonorableV. C. ?farsh@ll, Page 2

38 Tex. Jur. 844: "The appropriatlon.need not, however, be made In the GeneralAppropriation Bill, nor Is any partlculsrform of words requlred." Seotlons14 and 1413, of House Bill lvo.20, otherwise the Texas Soil Conservation Law, are the pertinent parts 0r the Act. Seotlon 14 calls for the appropriation or a sum or ~lO,OOO.OOfor the purpose or creatingand malntalnlng the State Soil Conservation Board until August 31, 1939. Be purposevror whloh thls sum may be expendedare not Itemized.

Seotlon 14a provrdee for the appropriation or several 8ums for the two year period beginning Septembe 1939, and ending August 91, 1941. ,A speoifio sum is de Ogi 1, nated ln each lnstanoe along with the purpose or purposes for whloh It may be emended. Under the heading WAdmlnlstratlveExpense- a sum oi $S,OOO.OO for tlie year'ending August 31, 1940, and the sum of #2,5OO.g0 ror tp8 year ending August 51, 1941, are earmarked ror "Light,. Heat, Water, and Contingent*. (Underecor$ag ours.)
Fe presume, sin08 this is the only oontingent fund set up ror the admlnlstration or the aot, that your questionpertafas to It.

It Is, or oourse, elf3mentary law that money appropriated

by the Legislaturecannot be used for any other purpose than that speolfledIn the app&cprlcitlon bill wlthout oonstltutlng

a mis-application

of pub110 funds. Conferenoeoplnlon,Attorney Ceneral*s Department, August 18, 192l, by HonorableX. F. Smith:

"It Is the law bf the State t&at no part of the mon'6y

appropriated

by the Legislature oan be used for any purpose other than the speoliio purpose named In the appropriationbill. An efpendltze ror a purpose otherthan'the one for which-themoney was apprpprlat $d would be a mlsapplicationof public funds. he Comptroller would not be authorized to draw his warrant~on any fund for any purpose'exoeptthe purpose named In the Aot, and the Treasurerwould be withoutHonorableV. C. Yarshall,Page 3

authorityto honor a warrant purpose except that ntnned In bill. ” on any fund ror any the appropriation

The above opinion quotes rrom 4 Corpus Jurls, p. 1480, as r0ii0ws:

*in appropriation

or runds Is an ‘authority rrom the Legislature, given at the prqper time, and In legal form, to the proper offIcera, to apply sums or money, out or that whloh may be In the treasury In a given year, to speoliled objeots or demands against the State; the act or the LegislatureIn sattlng appt or assigning to a’partlcular

use a certain SUB of money to be used in the payment or debts or dues from the State to its oredltprs;a setting apart from the publio revedue or a.aertain sum of money ror a 8peOlrledobjeot, in suoh manner that the exeoutlve ofrloers of the governmentare authorized to use that money.and no more ior that object, and Zor no other. ” [Underscoring ours.) See also opinion of the Attorney G&eral@k Department.to Honorable George B. Simpson, State Auditor,by Honoral&¶ Joe J. Alsup, AssistantAttorney General,dated April 20, 1935, and.

many other opinions in the riles or the Attorney General’sDepartment.

This principleapplies to all the several sums of money ‘eet

forth in Section 14a and their respectivewpurposes”. In other words, money appropriated for offloe’rental cannot be used to purohase offloe equipment and ‘rurniture, even if there happens to be a surplus In the rormer and a shortageIn the latter fund.

As for the roontlngentn fund set out under No. 9, Administrative

Expense, the question ai-lses as to what purpose It shall serve;

In Vol. 2, Words and Phrases (First Series),p. 1502, It Is said:

*The-adjeotlve

foontlngentt

as used In appropriation

bills to quality the word **I& penses * has g technkal, -andwell-understoodHonorableV. C. karshall, Page 4

meaning. It Is usual for Congress to enumerate the principalolasses of expenditures which they authorize,such as clerk hire, fuel, Light, postage, telegrams,etc., and then to make a F small appropriation ror the minor disbursements Incidentalto any great business,wbe oh oannot well be foreseen,.

and which It would ‘beuseless to SpeOirymore accurately. For suoh dlsbursemerits, a round sum Is appropriated under.thehead or toontlngent

expenses’. Bunwoodyvs. United States.(U.S.)

22 Ct. Cl. 269, 28O.s The moneys of a contingentfund are’ to be used for purposes the Legislatureoould not roresee or anticipate. No part of it can be used ror supplementing the funds appropriated ror SpeOiriC items, ror example, salaries,orrice rental, stationery and printing, etc. Where derlnlte sums are appropriated r0r SpSOiriO purposes,moneys In a oontlngent fund are not available ror expenditureIn oonneotlon with these speolilcpurposes. A Woontlngent* fund in itself Impliesunpredlotable Items of ooet and expense. where the Legislature

hssroreseen various expensesand provided for them derinitely,It is not Its Intentionthat moneys In a contingentfund be used for expenses other than those the Legislaturefailed. to foresee. A oontingentfund Is not amllable for enumeraaedexpenditures.

Angweringy&r rirst question, It Is our opinion that in the event any of the funds set’rorth In Section 14a ror speclrlopurposes are exhausted,the State soil Conservation Board is without power or authorityto spend oontlngent funds on said Items, the contingent moneys going not ror enumerateditems or purposes, oontemplated

by the Legislature. but for oontlngencies;not

Your attentionis called to an opinion of this de- *artment by HonorableEdward Clark, dated May 29, 1933, ~to ;,r’ HonorableGeorge H. Sheppard, Comptrollerof Public Aooounts, .,’ and also OpinionNO. O-184 by HonorableMorris E. Hodges to

. 1 I.. .* HonorableGeorge H. Sheppard, Comptrollerof Publlo Acoounts.

Your seoond inquiry is:
Wnsre may public hearings be held?vHonorablep. C. Yarbhall,Page 5

swered in It appears $0 us that this question-ls.fullyanParagraphE, Section 4, where the A@ reads: "The State F!oard

shall keep a complete

--. _ _ .

_ and accurate record or all its orx1cla.L actlone, hold such public hearings at such times and laces wlthin the State as may be determined y the Board, and shall promulgate such rules and regulatfons

as may be necessary ror the p@formanoe of the fUnotlon8 or Said board under the provisionsof this AOt.

. ." (Underscoring ours.)
In Sectlon5,headed Wreatlon of Soil Conservation Distriot~,It Is provided ror a "hearing"upon the questionof the deslrablllty and neoesslty of the creation of a soil conservation dletrlotwhere the necessarypetltlon has been filed with the Board. It Is not required in the Act that suoh hearing be held wlthln the confines of the proposeddistriot,but slnoe *all owners of land within the limits or the territorydesoribed in the petition,and or lands within any territory qonslderedror addltlonto suoh desorlbedterritory,and all other Interested parties, shall have the right to attend swh hearings and to be heard", it is apparentthat in giving the board a ride dlsoretlon In the matter of holding hearings the Legislature oontemplated

that the board would considerthe oonvenlenoe of the InterestedIndividualsor group.

Seotlon 13 or the Act pJXWlde8 that the board may oonduot publlomeetings and publlo hearingsupon petition for dlsoontlnuanoe of a dlstrlot. whereagain-thepresumption is that the board would oall the meeting, or hearing, within the dlstrlot for the convenienceor the land owners. and Interested

parties therein. Section 8.oi the Aot authorlzes.%he supervisors of any dlstrlot" to hold public meetings and public hearings whenever neoessaryand the district Board O? Adjustment Is given a similarpower with respeot to the petitions ot land owners seeking an adj,ustment under Section 10. Of oourse,hearings of the dlstrlot supervisorsand Board of \djustment

would be held In t&e particulardistrict they represented.HonorableV. C. Ifarshall, Page d

Answeringyour question speoirioally, It Is our opinion that the board ,I8 authorized to hold Its necessary public hearings at such times and plaoed )rlthin the State as It may determine suitableand convenient.

The third question in your request reads as follows: Tvlll certification ok expense'aooo& of delegatesto district conventions be required?= Section 4 provides as roiiows: W&?embers

of a county soil conservation advisory committeeshall receive no oompensatlon ror their servicesexcept the delegate to the dlstriotconvention who shall receive the amount Incurredas necessary expensesand $4.00 per day not to exceedtwo days to be paid by Ee State Soil C,onservatlon Eoard createdhere- ." Itrls our opinion that this. question is answerable In the affirmative. Authority ror certifloatlon is found in Artlcle'435Q, Texas civil:

Statutes,as amended, Aots, 1931, the pertinentportion or which read8 as.rollows:

"No warranbs shall be prepared (by the .Comptroller)

exoept on presentation1 the warrant Aerk oi a properly audited o,alms, verifiedby.arfidavlt to Its oorreotness, the proper auditingof whloh olalms shall be evldenoed by the Initials .written therein by,,the person auditingthe seme;.and suoh Olaim8 so verifiedand audited shell be sufriolentand the only authorityror the preparation of a warrant or warrants.
. . n Under the above statute ~the Comptroller

wotid'be prohibitedrrom preparinga tiarrant to cover a delegate's expense to a dlstrlot conventionunless the expense account was properly itemized and ,oertlf'~ad.

Finally, you ask If members of the'stateSoil Conservation

hoard oome under wSocial.Securlty~.HonorableV. C. Marshall, Page 7

By "Social Security" we assume you mean the Texas Unemployment

Compensation

Act, which Is the only state legislation commonlydeslgpatedsocial securityrequiring the filing of reports and payments Or taxes. Section 19(G) (5) of the Texas UnemploymentCompensation Aot, of the Texas Civil Statutes,a8 ,amended by the Forty-sixth

Legislature,reads as follows: "The term *employment' shall not lndlude:

the S%A 'ervlce perfOInXIe6 In the employ or or of any political subdivision thereof 0; of any Instrumentality of the State or Its political subdivlslons.w The same exemption 18 acoordedunder the pertinent prOviSiOn Or the Federal Social SecurityAct. U; S. C. A., Title 42, Seotlon 410,(B) (FederalOld Age Renefit),.andSectjon 1011 (7) (taxeswith respect to employment).

The State Soil ConservationBoard Is undoubtedly an Instrumentality of' the State, a oreature of the Legislature, an agency of the people.

Section 3 (4) states that "Eoard" or "State Soil Conservation

Board = means the agenoy created In Seotlon 4 of the A,,t. Section 3 (9) reads:

"'Agency of the State' Includesthe government of the state and any subdivision,agenoy, or Instrumentality, corporate or *srwlse, 0r the governmentof the state." Consequently,

you are advised thaifsembers of the St&e Soil Conservation bard do not come within the coverage Or State and Federal Social SecurityActs.

Trustingwe have answered your inquiriessatisraotorl$y,we are Yours very truly ~ATTORNEYGFXERALOF TEXAS DS:FG BY ( APPROVEDJUL. '19,

1939 (Signed)

W. F. Moore

RNEY GENERAL
'ITEE BY T.D.R.

Signed) Dick stout

Dick Stout AsSiStant