. 

PRICE DANIEL 

,..TTTO”NEY GEHERN. 

Hon. D. 

Cnqeral 

R-643, , 

’ 423 

QFPPB:E 0P 

THE Amom~~ GENDERS 

AUSTYX~ TEXAS 

W. Stakes 

Man.3ger 

Te:-as Prison System 

Funtsvllle, Texas 

Dear Xr. Stakes: 

Re: Validity of emergency 

appropriation when construed as authorizing 

payment of clalms~whlch 

arose while the Leglslature was In session 

and prior to the effectlve date of ~the Act. 

Your letter of July 3, 1947, readsr 

Qarly during the year, 1947 It developed that certain appropriations, made 

by the 49th.Leglslature for the support 

and maintenance of the Texas Prison System, 

would be exhausted before the end of the 

fiscal year ending August 31, 1947. Since 

the 50th Legislature was In sessionat that 

time, a request was made for an emergency 

approprlatQin on whtch to operate for the 

balance of the year. For reasons u&n&m 

to us ‘~lt was not uatll May 12th, 1947, 

that ihe emergency appropriation was’passed, 

an3 signed by the Governor.. In the meantime’it was necessary to continue to place 

orders’for certain items, such as food Sor 

Inmates, ‘feed for livestock, 011, gasoline, 

gas and electric services. In some cases 

the mods’were delivered before the emergency 

appropriation was made available and .ln 

others not until afterward. There were balances In the funds at the ?lme the orders 

were placed, but ln,.some accounts the 

previously exlstlngiorders would have overdrawn them. 

“When we requested ths emergency appropriation there were no act:ial overdrafts 
Don. D. 'rl, Stakes, page 2 (v-.376) 

but the proper Legislative Committees 

were told it was a real emergency, and I 

believe their intention was thet that approprlatlonwas to cover the entlre.need, .e that in fact the 5uth Legislature was 

simply supplementing the previous appropriations of the 4,9th, 

"In order to clarify our situation with 

the State Comptroller of Public Accounts, 

I shall greatly appreciate your opinion 

as to whether all of the purchases mentioned can be paid from the emergency appropriation (in all accounts After the 

orlglnal appropriations have been exhausted.)" 

.' 

The emergency appropriation mentioned ln your 

letter 1s Senate Bill 396, Chapter 191, Acts 50th Leglslature 1947q page 333 Vernon's Texas Session Law Service. It reads as follows: 

. . 

"An.~ActmakSng an emergency appropriation for the Texas Prison System; 

ana declaring an emergency. 

vBe it enacted by. the Legislature of the 

State of Texas: . 

"Section I. There is hereby approprlatedto.the Texas Prison System. out of the 

General Revenue Fund lnthe State Treasury 

not otherwise appropriated, the sum of 

Three Hundred Forty-nine Thousand Five 

Hunarea($349,500.00) Dollars, or so much 

thereof as may be necessary to supplement 

the appropriation made forothe said Texas 

Prison System by the 49th ~Leglslature; said 

appropriation to be for the remainder of 

the present fiscal year ending August 31, 

1947, and to be In all things subject to 

the general provisions and riders attached 

to the General De 

Bill, Acts 19459 fi 

artmental Appropriation 

9th Legislature, Chapter 

378; the purposes for which this approprlatlon Is made and tne appropriation Items 

supplemented by this appropriation being 

as follows, to-wit: 
Hon. D. W. Stakes, page 3 O-376) 

"APPROPRIATION BUDGET 

NUMBER REQUIREMENT 

68. 

70. 

7i. 

Groceries, mediral supplies, feed and seed 

Total J-909 . . . . . . ..$ 190,000.00 

Maintenance and repairs 

of equipment (including 

gas, 011, tires, etc.) 

and repairs to bulldings 

Total J-9l.l . . . ..*0. 12,ooo.oo 

General support and malntenance, including office 

supplies and expenses, 

rents, heat, light,wter, 

power, Ice, postage, 

telephone, telegraph, 

freight, express, drayage, per diem of Board 

Members, travel 

expense, transportation of prisoners, 

rewards, Inquests, 

~lnsurance, bond premiums, 

cleaning and janitor 

supplies, mlscellaneour expense 

,.. i 

Total J-912 . . . :. . . . 50,wo.00 

.. ~72. Bew equipment (J-913) , 10,OGG.GO 

i ‘jpab.rr. 

Industrial revolving 

fund,(9/1/46) cellblock 

construction 

Tgtal . . . . . . . . . . . . . 87,500.OO 

GRAI4D TOTAL . . . :.. . . . .$ 349,500.oo ,I 

>~?,. ~. YSectlon 2.. The supplemental approprl- :': '~ 

.._ a&&he~eln made shall be e'xpended In all 

,., ~. ~&lngs 1Kaccordance with the provisions of ., 

: the'~appr$prlatlon blli and In accordance' with- :;. 

5&e orl&hal approprl4tlon made for the sev-~. 

efatl: 1tWW supplementad by this approprlaB&i& 

"Section 3. The fact that the Texas 

.~ Pr,lson System has practically exhausted the. 
Hon. D, W. Stakes, page 4 (v-376) 

appropriations made for the purposes provided in this Act. and the necessity for an 

immediate appropriation to supplement the 

same, create an emergency and an imperative public necessity that the Constitutional Rule requiring bills to be read on three 

several days in each House of the Legislature 

be suspended, and same Is hereby suspended, 

and that this Act shall take effect and be 

In force fromand after Its passage, and 

it is so enacted. 

"Passed the Senate, 4pril 29, 1947: 

Yeas 27, Nays 0; passed the Rouse May 1. 

1947: Yeas 117, Nays 8. 

Approved May 12, 1947 

Effective May 12, 1947.- 

You inquire only about claims in excess of 

appropriations which were incurred "early during the 

year 1947" and prior to May 12, 1947, when the sup-~ 

plemental appropriation became effective.: Since no 

applicationwas made to the Governor for approval of. : 

deficiency warrants pursuant to Article 435l V. C. S.,~, 

and,~since you~apparently do not intend to submit 

claims which were incurved prlor,to January 14 

the date onwhich the 50th Legislature 

1947, 

convene d,to : 

the Comptroller for payment out of the supplemental 

appropriation bill we will not pass on then validity 

of such claims at .his t time. The sole question here, 

is whether' claims for items "such as foods for inmates,.feed for livestock, oil, gasoline, gas and 

,electrlc services ",which were incurred between January 14, 19479 when the Legislature met, and May 12, 

1947, the effective date of the supplemental appropriation, can be legally paid out of such approprlation. We answer this inquiry in theaffirmative. 

Our ruling,and the reasons.-therefor follow: 

~. There are two controlling law questions 

involved. The one has.to do with aninterpretation of the supplemental appropriation bill Itself 

to determine whether the Legislature intended for it 

to cover expenses incurred prior to its effective date. 

The other question is whether the Legislature could by emergency appropriation passed during the biennium lawfully authorize an expenditure 

for Items "sudh as foods for inmates, feed for llvestock, oil, gasoline, gas and electric services", 
Hon. D. Wi Stakes, page 5 (v-376) 

which were ,used while the Legislature was in 

session and before th e emergency appropriation 

became effective. 

We will first discuss the supplemental 

appropriation bill, quoted above. It recites in 

Section 1 that the amount appropriated is "to supplement the appropriation made for the said Texas 

Prison System by the 49th Legislature, said appropriation to be forShe remainder of the present 

fiscal year ending August 31, 1947, and to be in 

all things subject to the general provisions and 

riders attached to the General Departmental Appropriation Bill, Acts 1945, 49th Legislature Chapter 378." Reference to the original bill (p, 907, 

General & Special Laws, 49th Legislature, 1945) 

shows that It contains the same five Items under 

appropriation numbers 68, 70, 71, 72 and rider, which 

are included in the supplemental appropriation. The 

emergency clause on the Supplemental Appropriation 

A& recites "the fact that the Texas Prison System 

has practically exhausted the appropriations made for 

.the,purposes provided In this Actoat' It is perfectly 

obvious ,that the Legislature intended for the Supplemental Bill to be an addition to the original appropriation, without any hiatus, intervening. In 

Commonweaith vs, Liveright (Pa.) 161 P. 697,~ the court 

said: 

See, 

II 

. . 0 0 An appropriation does not 

speak from'the date of approval of the 

measures, but from a consideration of that 

appropriation and other appropriat.lons during the same biennium." 

also, Graham vso Childers (Gkla.) 241 Pact. 178. 

Article 4351 V, Ci S. provides for obtaining deficiency warrants from the Governor "until the 

meeting of'the next Legislature." On March 26 1947, 

the Legislature had appropriated~ $138,241.47 #to pay 

the deficiency appro riations 

t 

granted by the Governor, 

~pursuant to Article 351 of the Revised Civil Statutes 

of the State of Texas, 1925, prior to January 1 1947": 

g;B. 228, ch. 57, Acts 50th Legislature, R.S. 1447,~. 

. There were no claims for the Prison System lncludad In this deficiency appropriation. Considering the 

supplemental appropriation for the Prison System, above 

quoted, and the deficiency appropriation bill together, 
Hon * D, W, Stakes, p.ige 6 (v-376) 

we find nothing to indicate that the Legislature knew, 

of any deficiency claims incurred by the Prison System 

prior to January 1, 19*t7? or that it intended for any 

of the money appropriated in either of said bills to 

be used for that purpol;e, We, therefore, interpret 

the supplemental appropriation bill as covering the 

period from January 14th , 1947, when the Legislature 

convened, to Au:_ust jist, 1947, the end of the blennium, 

We next consider the power of the Legislature to enact an emergency appropriation having a 

retroactive effect, It is well settled ~that "the 

State Legislature may exercise all the legislative 

powers of the people Y :;ubject only to the limitations 

expressed In the Constitution of the State and of the 

United States," .Charles Scribner's Sons vs+ Marrs, 

Tex, Sup. Ct., 262 s,w.. 722; Conley vs. Daughters of 

the Republic, Sup. Ct.., 156 S.W,, 197. 

We have concluded that Section 49 of Article 

III, Texas Constitution, is not applicable here,. The 

moneys spent by the Prison System in excess of the sums 

appropriated In the regular departmental,appropriatlon 

blllze not "debts" within the meaning of this, section 

of the Constitution. This section refers to "casual 

deficiencies of,revenue" and not to casual deficiencies 

ln:approprlations, Terre11 vs. Middleton, 187 S.W. 

.-367,, error refused; Attorney General's Opinion dated 

February 21, 1923 to Hon. J. E. .Quaid and signed by 

L. C. Sutton Assistant Attorney General,being No. 

2482, Book 58, p. 203 of the Attorney General's 

Opinons for 1922 - 1924. See, also, concurring oplnion of Justice Hawkins In Terre11 vs. Middleton, 

.Tex, sup. 191 S.W. 1138, at 1148, et seqWe have concluded that Section 44, Article 

III, Texas Constitution, is not applicable here. 

TNs sectl.on prohibits the Legislature from appropriating "any amount of money out of the Treasury 

of the State, $0 anv individual, on a claim,~ real or 

pretended, when the same shall not have been provlded for by,pre-existing law." The Supplemental Appropriation quoted above 1s not made to "any individual" 

within the meaning of this section of the Constitution. 

Austin National Bank vs. Sheppard, Tex. Sup. 71 S.W. 

(2d) 242, 245, The supplemental appropriation Is 

made "to the Texas Prison System" which is a State institution and not to an "lndlvldual*', This distinguish- 
Hon. D. WI Stakes, page 7 (v-376) 

es this case from the case of Fort Worth Cavalry 

Club vs. Sheppard, Tex. Sup., 83 S.W. (2d) 660, 

where the appropriation was made to an individual. 

If,it Is contended that Section 44, of 

Article III, is applicable to the supplemental appropriation bill, the answer is that this appropriation 

is "provided for" by the mme "pre-existing law" which 

supported the regular Departmental Appropriation Bill. 

That "law" consists of'Section 58, Article XVI, Texas 

Constitutionad Articles 634 and 6166g, V. C. S.~ 

Section 16 of Article I? Texas Constitution, 

provides: 

"No bill of attainder,= post facto 

law, retroactive law, or any law impalr- 

-1ng the obligation of contracts, shall be 

.made*" 

This provision prohibiting the enact- 

~ment of a."retroactive,law" was intended to protect 

vested rights .of third parties. 9 Tex. Jur. 536; 

537. Where there are no rights of third parties lnvalved,, the Legislature has the same power to enact' 

retroactive laws as it has to enact prospective laws. 

.Dallas County vs. Lively, 106 Tex. 364 167 S.W. 

219; Blomstrom vs. Wells, Clv. App., 339 S.W. 227, 

writ of~error dismissed; Anderson,County Road Dlstri,ct No. 8 vs. Pollard, Tex, Sup,, 296 S;W. 1062. We ; 

have~concluded ,that Section 16, of Article I, of the 

Texas Constitution 1s~ not applicable to an emergency 

appropriation such as we have here. 

The Constitution authorizes the Legislature 

to make emergency appropriations out of current revenue to take care ~of the current expenses of the 

biennium. 

~Sectlon 5, of Article III, Texas Constitution, provides In part as follows: 

"The Legislature shall meet every two 

years at such time as may be provided by 

law and at other times when convened by the 

Governor d When convened in regular session, 

the first thirty days thereof shallte devoted, to the introduction of bills and resolutions, acting upon emersency annrouria- 
1 

Ron, D. W. Stakes, page 8 (V-376) 

tlons, U O O O " (Emphasis added) 

Section 49a of Article III, of the Texas 

Constitution, provides as follows: 

"It shall be the duty~ of the Comptroller of Public Accounts In advance of 

each Regular Session of the Legislature 

to prepare and submit to the Govenor and 

to the Legislature upon its convening a 

statement under oath.showing fully the 

financial condition of the State Treasurv at the close of the last fiscal DeriOd 

and an estimate of the DrObabh? receiuts 

and disbursements for the then current 

fiscal year.J' (Emphasis added). 

Section 6, of Article VIII, .Texas Constitution provides, In part: 

,I . 0 . . nor shallmy approprlatlon 

of money be made for a longer term than 

two years, except by the first~Legislature 

to.assemble under this Constitution, which 

may make the necessary appropriationsto 

carry on the government until the assemblage 

of the sixteenth Legislature," 

Article 12, V. C. S. provides: 

"The fiscal year of the State shall 

terminate on the thirty-first day of 

August of each year, and appropriations of 

the State government shall conform thereto." 

After 4ugust 31st of the last year ~of'a blennium the Legislature would have no authority to make '. 

emergency deficiency or supplemental‘appropriatlons 

for the fiscal year just ended. If It undertook to .do 

so by an appropriation bill, the appropriation bill 

would be invalid in so far as it conflicted with 

Article 12,-V. C. S. 

192 E&W. (2d) 559. 

Moore vs. Sheppard, Tex. Sup. 

At the Session following the close 

of a biennium the Legisla'ure can only act on claims 

of individuals which are provided for by pre-existing 

law, During a biennium, however, the Legislature has 

full authority to appropriate within the current revenues all of the money which it finds is necessary 
Hon. D. W. Stakss, page 3 V-376) 

and required for the efficient maintenance and operation of the several State institutions during 

that biennium. 

Subdivision 14(b) of the General Provisions of the Departmental Appropriation Bill passed by the~49th Legislature, 1945, page 945, reads: 

nThe approprjations herein provided are 

to be construed as the maximum sums to be appropriated to and for the several pruposes 

named herein, and the amounts are intended 

to cover, and shall cover the entire cost 

cf the respective items and the same shall 

not be supplemented from any other sources; 

provided, however, that the provisions and 

restrictions.herein shall not apply to the 

State Commission for the Blind; and, extent 

as otherwise provided, no other expenditures shall be made, nor shall any other. 

obligations be incurred by any department 

of~this State, provided, however, that 

nothing herein shall prevent any department head from paying less than the.maximum amount set forth herein for any 

salaried positions." (Emphasis added). 

The language "except as otherwise provided" 

as used in subdivision 14(b),,supra, includes the method .of supplementing an appropriation as. provided by 

Articles~ 4351 and 43!jla, V. C. S., as wellas by the 

supplemental appropriationat. These two methods, 

however, a.re the only means of supplementing a 

'. General Appropriation Bill. 

The goods and services used by the Prison 

System during the time that the Legislature was.in 

sesslonznd before the effective date of the Supplemental Appropriation Bill which were not paid for out 

of the general appropriat 1 on, were in effect advanced 

to the Prison System. The Prison Board and the Board 

of Control on behalf of the Prison Board, had no 

authority under subdivision 14(b) of the Departmental 

Appropriation Bill, above quoted, to bind the States 

for the payment of moneys in excess of the sums.approprlated. Those who furnished goods and services to 

the Prison System during this interval did so at 

their own risk. It is our considered opinion, however, that the Legislature had the power during the 
. 

Hbn. D. Wb Stakes, p3y.e 16 (v-376) 

biennium to provide money to pay for goods and services furnished the Prison System during that period, whether they were furnished before orafter the 

effective date of the supplemental act. 

The holding in this ~opinion does,not mean 

that the Legislature, by an emergency appropriation, 

may grant "extra compensation" "after service has been 

rendered or a contract has been entered into, and performed In whole or in part," Sections 44 and 53, 

Article III, Texas Constitution. Nichols vs. State 

(Cl-?. App.) 32 S.W. 452; State vs. Holdeman, 163 

S.W. 1020; Attorney General's Gpinion No. o-1750. 

It does.mean, however, that within the 

biennium the Legislature may supplement an approprlation in the same manner and with the same authority 

as It could have passed the regular appropriation at 

the beginning of the biennium, provided that the 

moneys are not to.be used for the purpose of paying 

"extra compensation" "after service has been renderled or a contract entered into, and performed in 

whole or in part,! within the meaning of Sections 

.44 and 53. Article 111,~Texas Constitution; Dallas 

County vs- Lively, 1.06 Tex. 364 167 S.W. 219; 

Graham vs. Childers (Okla) 241 sac. 178, 182. In the 

last cited case the plaintiff soughtin injunction 

against the State Treasurer to restrain him from paying out of a supplemental appropriation for text 

books which were,received.by the State but not paid 

for out of the regular appropriation, Inholding 

that the supplemental appropriation was valid.and in 

denying the injunction the court said: 

"The mere fact that the Legislature 

perhaps from lack of proper statistical Information, failed to make an appropriation 

sufficient ~to carry out this purpose would 

in no wise preclude it from doing so 

can be done within the constitutiona i - 

itrnit 

tations at a subseouent session held durlnq 

the b-1 term. The money appropriated 

was intended to be spent in supplementing 

or&ding to the former appropriation what 

the facts demonstrated was necessary to 

frropirlY carry out +ifie purposes ofthe orlglnal act. e e . 
Hon. D. W. Stakes, page 11 (V-376) 

"Plaintiff acain says theazt of the 

state superintendent was in fact an attempted purchase of books in excess of the appropriation, and the method called a loan was 

a subterfuge. Suppose this be conceded. 

We are notto condemn or condone, except 

in so far as the law drives us. It was, 

certainly the intent of the original bill 

that the necessary books be supplied. They 

were supplied, and even should It be conceded 

In doing so the zeal of the officers led 

them beyond the pale of the then legal appropriation, there was no binding obligation on the 'sovereign Legislature to follow such officers and make it good. But, 

if, on the other hand, the Legislature 

saw fit t0,d.o so, and authorized the pay- 

..ment, and its act did not step beyond the 

constitutional limits, the courts cannot 

strike down its deliberate enactment. 

Federation v. Salt Lake County, 22 Utah, 

6 61 P. 222< New Orleans vi Clark, 95 U.S. 

6b. 24 L. Ed. 521: Cuilford v. Cornell. 

18 Barb. (N.Y.)-615; Lycoming v. Union,' 

15 Pa. 166, 53 Am. Dec. 575; People v. 

Burr, 13 Cal. 343; Black Con. Law., 135; 

EOOJO;; c,“. Law, 466. See, also, Cayuga 

. State, 112 Misc. Rep. 517, 

182 N. Y. S. 646: Osweeo & Svracuse R. R. 

Co,~ vi State, 226 N. YT~351,-124 N. E. 8; 

Ulster v. State, 177 N.'Y. 189, 69 N. E. 

370.“. 

. 

This is merely another way of saying that 

"what the Legislature could havealthorlzed in the 

first Instance it can ratify, If at the time of' 

ratification It has the in$tlal authority to 

euthorize.ta Anderson County Road Dls~trlct No. 8 vs. 

Pollard,.Tex. Sup., 296 S.W. 1062, 1065. 

We cannot, of course, give blanket appro- 

'val to all of the claims that may be presented for 

payment out of each of the five items listed in the 

Supplemental Appropriation Bill, quoted above. It 

will be necessary for the Comptroller to examine each 

claim individually in the light of this opinion to 

determine whether or not it can be paid. NO ~distin&ion is to be made between claims that arose before and after May 12th, so long as they arose after 
. . 

Hon. D. W. Stakes, page 12 (V-376) 

the Legislature convened on January 14, 1947, and before Auyst 31, 1947, the end of the biennium. . 

The answer to the second UeStiOn in 

Attorney General's Opinion No. G-4815 is hereby 

overruled. 

The five items of appropriation 

listed in the Supplemental Appropriation 

Bill for the Texas Prison System which 

was passed by the 50th Legislature and became effective on May 12, 1947, may be used 

to pay defi.clencies in the same items in 

the regular biennial appropriation bill 

for the Prison System, where such expenses were incurred -Ifter the Legislature convened and prior to the end of 

the biennium. Ch. 191 S.B. 396, Acts 

50th Legislature (194h p. 333. 

Yours very truly, 

ATTGRNEY GENEFlAL OF TEXAS 

FD:mw 

ATTORNEY GENERAL