.

PRICE DANIEL ,..TTTO”NEY GEHERN.

Hon. D. Cnqeral R-643, , ’ 

### 423 

## QFPPB:E 0P 

# THE Amom~~ GENDERS

AUSTYX~ 

## TEXAS

W. Stakes Man.3ger Te:-asPrison System Funtsvllle, Texas

Dear 

### Xr. Stakes: Re: Validity of emergency appropriationwhen construed as authorizing payment of clalms~whlch arose while the Leglslature was In session and prior to the effectlve date of ~theAct.

Your letter of July 3, 1947, readsr Qarly during the year,1947 It developed that certainappropriations,

### made by the 49th.Leglslature for the support and maintenance of the Texas Prison System, would be exhaustedbefore the end of the fiscal year endingAugust 31, 1947. Since the 50th Legislaturewas In sessionat that time,a requestwas 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 appropriationwas’passed, an3 signed by the Governor.. In the meantime’itwas necessary to continue to place orders’for certain items, such as food Sor Inmates,‘feedfor livestock, 011, gasoline, gas and electric services. In some cases the mods’were deliveredbefore the emergency appropriationwas made available and .ln othersnot untilafterward. There were balances In the funds at the ?lme the orders were placed, but ln,.some accounts the previously exlstlngiorderswould have overdrawn them.
“When we requested ths emergency appropriation there were no act:ialoverdraftsDon. D. 'rl, Stakes, page 2 (v-.376)

but the proper Legislative Committees were told it was a real emergency,and I believe their intentionwas thet that approprlatlonwas to cover the entlre.need, .e that in fact the 5uth Legislaturewas simply supplementing the previous appropriations of the 4,9th,

"In order to clarify our situationwith the State Comptroller of PublicAccounts, I shallgreatly appreciateyour opinion
as to whether all of the purchasesmentioned can be paid from the emergencyappropriation (in allaccounts After the orlglnal appropriationshave beenexhausted.)"

.' The emergencyappropriationmentioned 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.~ActmakSngan emergencyappropriation 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-nineThousand 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 endingAugust 31, 1947, and to be In all things subject to the general provisionsand riders attached to the General De Bill, Acts 19459 fi artmentalAppropriation 9th Legislature,Chapter 378; the purposes forwhich this approprlatlon Is made and tne appropriationItems supplementedby this appropriationbeing
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 supportand malntenance, including office suppliesand 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, cleaningand janitor supplies,mlscellaneour expense

,.. i Total J-912

...:.

... 50,wo.00

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

### i ‘jpab.rr. Industrialrevolving 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'xpendedIn all

~.~&lngs 1Kaccordance with the provisions of

,., ., : the'~appr$prlatlon blli and In accordance' with- :;. 5&e orl&hal approprl4tlonmade for the sev-~. efatl: 1tWW supplementadby this approprlaB&i&
"Section 3. The fact that the Texas

.~ Pr,lsonSystemhas 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 emergencyand an imperative public necessity that the Constitutional Rule requiring bills tobe read on three several days in each House of the Legislature be suspended,and same Is hereby suspended, and that this Act shalltake 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 appropriationswhich were incurred "early during the year 1947" and prior to May 12, 1947, when the sup-~ plementalappropriationbecame effective.: Since no applicationwas made to the Governor for approval of. : deficiencywarrants pursuant to Article 435l V. C. S.,~, and,~since

you~apparentlydo not intend to submit claimswhich were incurvedprlor,to January 14 the date onwhich the 50th Legislature 1947, convene d,to : the Comptroller for payment out of the supplemental appropriationbill we will not pass on then validity of such claims at .his time. t The sole question here, is whether'claims for items "suchas foods for inmates,.feed for livestock, oil, gasoline, gas and ,electrlcservices ",whichwere incurred between January 14, 19479 when the Legislaturemet,and May 12, 1947, the effectivedate of the supplementalappropriation, 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 appropriationbill 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 appropriationpassed 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 ,usedwhile the Legislaturewas in session and before the emergencyappropriation 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 thesaid Texas Prison System by the 49th Legislature,said appropriation to be forShe remainder of the present fiscal year ending August 31, 1947, and tobe in all things subject to the generalprovisionsand riders attached to the General DepartmentalAppropriation Bill, Acts 1945, 49th Legislature Chapter 378." Reference to the originalbill (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 supplementalappropriation. The emergency clause on the SupplementalAppropriation A& recites "the fact that the Texas Prison System has practically exhausted the appropriationsmade for .the,purposes

provided In this Actoat' It is perfectly obvious ,thatthe 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 An appropriationdoes not

. . 0 0 speak from'the date of approval of the measures, but from a considerationof that appropriation and other appropriat.lonsduring 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 deficiencyapproriations t granted

### by the Governor, ~pursuantto 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 appropriationbill together,Hon * D, W, Stakes, p.ige6 (v-376)

we find nothing to indicatethat the Legislature

### knew, of any deficiency claims incurredby 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 supplementalappropriationbill as covering the period from January 14th, 1947, when the Legislature convened, to Au:_ustjist, 1947, the end of the blennium,

We next consider the power of the Legislature to enactan emergencyappropriationhaving a retroactive effect, It iswell settled ~that"the State Legislaturemay exerciseall the legislative powers of the people Y :;ubject

only to the limitations expressed In the Constitutionof the State and of the United States," .CharlesScribner'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 applicablehere,. 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 deficienciesof,revenue" and not to casualdeficiencies ln:approprlations, Terre11vs. Middleton, 187 

### S.W. .-367,, error refused;Attorney General's Opinion dated February 21, 1923 to Hon. J. E. .Quaidand signed by L. C. Sutton Assistant Attorney General,beingNo. 2482, Book 58, p. 203 of the Attorney General's Opinons for 1922 - 1924. See, also, concurring oplnion of Justice Hawkins In Terre11vs. Middleton, .Tex, sup. 191 S.W. 1138, at 1148, et seq

### We 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 shallnot have been provlded for by,pre-existinglaw." The Supplemental Appropriation quoted above 1s not made to "any individual" within the meaning of this section of the Constitution. Austin NationalBank vs. Sheppard,Tex. Sup. 71 S.W. (2d) 242, 245, The supplementalappropriation Is made "to the Texas Prison System"which is a State institutionand 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 appropriationwas made to an individual.

If,it Is contended that Section 44, of Article III, is applicable to the supplementalappropriationbill, the answer is that this appropriation is "provided for" by themme "pre-existing law" which supported the regular DepartmentalAppropriation 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 ofattainder,= post facto law, retroactive law, or any law impalr- -1ng the obligation of contracts, shall be .made*"
This provision prohibiting the enact- ~mentof a."retroactive,law"was intended to protect vested rights .ofthird 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. .DallasCounty vs. Lively, 106 Tex. 364 167 S.W. 219; Blomstrom vs. Wells, Clv. App., 339 S.W. 227, writ of~error dismissed; Anderson,CountyRoad Dlstri,ct No. 8 vs. Pollard, Tex, Sup,, 296 S;W. 1062. We ; have~concluded ,thatSection 16, of Article I, of the Texas Constitution 1s~ not applicable to an emergency appropriation suchas we have here.

The Constitution authorizes the Legislature to make emergency appropriations out of current revenue to take care ~ofthe current expenses of the biennium.
~Sectlon5, 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 timeswhen convened by the Governord When convened in regular session, the first thirty days thereof shallte devoted,to the introduction of bills and resolutions, acting upon emersencyannrouria-1

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

tlons, U O O O " (Emphasisadded)
Section 49a of Article III, of the Texas Constitution,provides as follows:

"It shallbe the duty~ of the Comptroller of PublicAccounts In advance of each Regular Session of the Legislature to prepare and submit to the Govenor and to the Legislatureupon its conveninga statementunder 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 disbursementsfor the then current fiscal year.J' (Emphasisadded).
Section 6, of Article VIII, .TexasConstitution provides, In part:

,I

. 0

. .nor shallmy approprlatlon of money be made for a longer term than two years, exceptby the first~Legislature to.assemble

under this Constitution,which may make the necessary appropriationsto carry on the governmentuntil theassemblage of the sixteenthLegislature,"
Article 12, V. C. S. provides:
"The fiscal year of the State shall terminate on the thirty-firstday of August ofeach year, and appropriationsof the State government shall conform thereto."
After 4ugust 31st of the last year ~of'ablennium the Legislaturewould have no authority to make '. emergency deficiencyor supplemental‘appropriatlons for the fiscal year just ended. If It undertook to .do so by an appropriationbill, the appropriation bill would be invalid in so far as it conflictedwith 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 onlyact on claims of individualswhich are provided for by pre-existing law, During a biennium, however, the Legislaturehas full authority to appropriatewithin the current revenuesall of themoney which it finds is necessaryHon. D. W. Stakss, page 3 V-376)

and required for the efficientmaintenance and operation of the several State institutions during that biennium.

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

nThe approprjationsherein provided are to be construedas 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.hereinshall not apply to the State Commission for the Blind; and, extent as otherwise provided, no other expenditures shall be made, nor shall any other. obligationsbe 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." (Emphasisadded).
The language "except as otherwise provided"
as used in subdivision 14(b),,supra, includes the method .ofsupplementingan appropriationas.provided by Articles~

4351 and 43!jla,

V. C. S., as wellas by the supplementalappropriationat. These two methods, however,a.rethe 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 sesslonzndbefore the effective date of the Supplemental Appropriation Bill which were not paid for out of the general appropriat on, 1 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.e16 (v-376)

biennium to provide money to pay for goods and services furnished the Prison System during that period, whether theywere furnished before orafter the effectivedate of the supplementalact.

The holding in this~opiniondoes,not mean that the Legislature,by an emergencyappropriation, 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 supplementan approprlation in the same manner and with the same authority
as It could have passed the regular appropriation at the beginningof the biennium, provided that the moneys are not to.be used for the purpose of paying "extra compensation" "after servicehas been renderledor a contract entered into, and performed in whole or in part,!within the meaning of Sections .44and 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 supplementalappropriation for text bookswhich were,received.by the State but not paid for out of the regular appropriation, Inholding that the supplementalappropriationwas 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~tocarry out this purposewould in no wise preclude it from doing so

can be done within the constitutiona i - itrnit
tations at a subseouent sessionheld durlnq The money appropriated the b-1 term. was intended to be spent in supplementing or&ding to the former appropriationwhat the facts demonstrated was necessary to frropirlY

carry out +ifie

purposes ofthe orlglnal act. e e
.Hon. D. W. Stakes, page 11 (V-376)

"Plaintiffacain says theazt of the state superintendentwas 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.oso, and authorized the pay- ..ment, and its act did not step beyond the constitutionallimits, 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 anotherway of saying that "what the Legislature couldhavealthorlzed 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 SupplementalAppropriationBill, 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 andafter 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, theend 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 SupplementalAppropriation Bill for the Texas Prison Systemwhich
was passed by the 50th Legislatureand became effective on May 12, 1947, may be used to pay defi.clencies in the same items in the regular biennial appropriationbill for the Prison System, where such expenses were incurred -Ifterthe Legislature convenedand prior to the end of the biennium. Ch. 191 S.B. 396, Acts 50th Legislature (194h p. 333.

Yours very truly,

ATTGRNEYGENEFlAL

OF TEXAS

**FD:mw**

ATTORNEYGENERAL