Hon. George’ H. Sheppard ‘~ Comptroller of Public Accounts A~ustin,~Texas
Dear Sir: Opinion No. O-2258 Rep: Payment ofaccounts incurred by Assistant Attorneys General for expenses in connection with the performance .ofwork’for other’state departments /ASpaya’ble:out,of the-appropriatjons made to such other State departments.~
This will acknowledge receipt.of your letter ofApril 1’9, 1940. Inthis letter you quote the following protiisions ofSenate Bill 427,Acts’ of the.46thLegislature:

.”
. The appropriations herein provided are to be,construed as the maximum sums tobe appropriated to and for the several .pu+- poses named herein; and the amounts are intended to,cover’and shall cover the entire cost ofthenrespective items and the same shall notebe supplemented from any other source; and, except as otherwise provided, no other expenditures shall be made, n&r shall any other obligation& be incurred by’any department ofthis State.”

.

.‘“Itis’provided that no expenditure shall be made for traveling expenses by any department of~this State .inexcess ofthe amount of motley itemized herein for said purpose. This provision shall be applicable whether the item for traveling expenses is to be paid out ofthe appropriation from the General Fund, from fees, receipts or special funds collected by virtue .ofcertain laws of this State, oy from~other funds .(exclusiv& ofFederal funds) available;,ior .use by a department.’
.“,Transfers from Special 

### Fup$s:’ In order that the c,ost oflegal work an@law enforcement may be eiuitably distributed and chargedHon. George H. Sheppard, Page 2, O-2258

I against the various administrative enforcement funds, the State Comptroller of Public Accounts and the State Treasurer shall, as soon as possible, after August 31, 1940 and August 31, 1941, respectively, transfer to the General Revenue Fund of this State from the following special finds and allocated collections thereto a sufficient amount of money to pay the entire cost of legal work and law enforcement, including salaries, rendered by the Attorney General’s Department for the respective State agencies involved. The Attorney General shall, on or before August 31, 1940, and on or before August 31, 1941, submit to the State Comptroller and the State Treasurer an itemized statement, under oath, setting forth the cost of legal work and law enforcement, including salaries, rendered by his Department tothe agency affected. In making the allocations aforementioned the State Comptroller and the State Treasurer shall deduct from the following funds the amounts charged against the **same** as certified by the Attorney General: Oil and Gas Enforcement Fund, State Highway Fund, Gas Utilities Fund, **Motor** Fuel Tax Enforcement fund, Old Age Administration Fund, Securities Act Fund, Cigar- .ette Tax Enforcement Fund, Motor Transportation Rec~eipts, Enforcement Funds col1ecte.d by Banking Commissioners, State Board of Barber Examiners, State Board ofHairdressers and Cosmetologists Fund, Enforcement Fees collected by Board ofInsurance Commissioners, Enforcement Funds collected by Commissioner ofAgriculture, Enforcement Funds collected by Bureau ofLabor Statistics, Operators and Chauffeur’s License Fund, proceeds derived from the sale ofalcoholic beverage stamps before allocation, Special Game Fund, and other such Special Funds for which services are rendered by this Department.*

You refer to the situation wherein employees ofthis department incur expeases in connection with the rendition ofservices directly for another State department, and ask the following three questions:

“1. Would provision No. 1be violated if accounts incurred under such conditions were paid out ofappropriations made to other state departments ?
*2. Should provision No. 2, as construed in conference opinions Nos. 3082 and 3089, be applied to the appropriation made for traveling expenses for **your** Department when the traveling expense accounts incurred by your assistants in representing the Departments listed in provision No. 37Hon. George H. Sheppard, Page 3, O-2258

“3. If question No. 2is answered inthe negative, please give your interpretation ofthe force and effect of provision No. 3.”
The question tobe determined is whether the appropriation made to another State department is available for the payment of the traveling and other expanses incurred by anAssistant Attorney General in direct and immediate connection-with the handling ofa lawsuit or other matter for such State department.

Effect, ofcourse, is tobe given tothe intent ofthe Legislature. In ascertaining that intent, the ordinary rules of statutory construction are to be applied tothe appropriation bill. Because the Legislature has appropriated sums of money to the various State departments for maintenance and miscellaneous items of expense, without any direction definitely indicating ,the limit ofthe authority ofthe department to make ~expenditutes 

### therefrom,
we are driven tothe application ofgeneral principles to the appropriation bill.
As a matter of sound business and accounting principle, an expense is properly tobe regarded as that ofthe pr,oject which occasions it and which directly receives the benefit accruing from the expenditure. This is true in government as in private business enterprise.

The Attorney General is charged with the duty oflaw enforcement generally. Inthe discharge ofhis functions, he represents the State directly; but in the discharge of his functions he also serves as the legal representative and advisor of various State departments who are charged by law with the administration and enforcement of certain **statutes.** Through the rendition of legal services, he assists them inthe performance oftheir duties inthat respect. That theAttorney General’s assistance is had, however, does not alter the fact that the primary duty ofadministration and enforcement, in such instances, is onthe particular State department served, and the cost involved that incident tothe administration and enforcement ofthe particular law.

The function of an appropriation to a State department is to provide funds for the discharge ofthe duties imposed by law upon that department. Where a department is charged with the duty ofadministering and enforcing
a particular law, the institution, prosecution and defense oflawsuits to that end is as much the duty ofthat department as it is of theAttorney General,^

.

Hon. George H. Sheppard, Page 4, O-2258

whose services are enlisted therein. And the expense incident thereto is an expense of.administering and enforcing such law.

It follows from what has been said that where a department charged with the administration and enforcement ofa law enlists the services ofthe Attorney General 

### in order to perform such duty, the expenses immediately incurred in connection with the performance ofthe service **may** be borne out of~theappropriation made tothat department, or out ofthe Attorney General’s appropriation. The availability ofthe appropriation to defray such expense is determined by ascertaining that the expense is incurred by permission 

### of the department head for the purpose 

### ofadministering and enforcing the laws committed to the department --not by the departmental connection ofthe persons who incurs the expense in,rendering the service requested.

To illustrate: The General Law provides for the appointment of as many aa’aix$ssistant Attorneys General by the Attorney General, as may be requested by the Texas Liquor Control Board, to assist the Board inthe en- .forcement ofthe liquor ‘laws. (Vernon’s Revised Penal Statutes, Article. **666,** Section 7(c).) The law provtdes that the salaries ofthese Assistants shall be paid from the funds appropriate~d to the Liquor Board for the enforcement of the **Act,** and stipulates that the Board shall fprnish theAssistants office space and stenographic **service--but** the law makes no provision for the payment of the expenses incurred by theAssistants in the performance oftheir duties.

The 4,SthLegislature, inthe departmental appropriation bill passed by it, listed these six Ass,istants in the Liquor Board Appropriation. They
were employed and were subject to discharge by the Attorney General, ware supervised and controlled by him, and were responsible tohim and not to the Liquor Board for the faithful and efficient discharge oftheir duties. These Assistant Attorneys General were employees of the Attorney General, not of the Texas Liquor Control Board. Yet, under this state offacts, the expense incurred by these Ass.istants in prosecuting and defending suits’ for the Liquor Control Board were borne out ofthe Liquor Board appropriations, which was, we think, in accordance with the legislative intention. This was not because the Assistants wer~e employees ofthe Liquor Board, but because the expenses wara incurred directly and immediately in connection with the administration and enforcement ofthe liquor laws, which was the primary responsibility of Lthe Liquor Board, and to defray the expense ofwhich the Liquor Board appropriation was provided by the Legislature.

The same situation existed with reference to the Unemployment Compensation Commission.Hon. George H. Sheppard, Page 5, O-2258

The last Legislature listed all Assistant Attorneys General in .theAttorney General’s appropriation, their salaries tobe paid out of the General Fund. This was done in order to enable the Attorney General to make use of the services ofAssistants s.erving the Liquor Board, the Unemployment Compensation Commission, and other departments operating out of special funds, for-the rendition of other services ,when deemed necessary or expedient. yet without making the special **funds,** inequitably, bear all the salary cost when all oftbe Assistants’ time was ,notdevoted to thework ofthat department.

No question of supplementing an appropriation ~is’,~involved~.There
**are** simply two appropriations available for defraying ,thesame expenditure. The one,,may, only be expended with the approval of,theAttorney General; the other only with the approval ofthe department head. The ,appropriation tothe Attorney General is available for law enforc,emeut generally; the appropriation to the department is available only forthe administration and enforcement ofthe particular laws committed tothejurisdiction ofthat department, An expenditures from the one **does** not supplement the other.

The paragraph styled “Transfers from Special~Funds”, appearing in the general rider to the departmental appropriation bill passed by the 46th Legislature, does not purport to announc~ea contrary r.ule. ‘The purpose of such rider is to require reimbursement out ofthe special funds to the general fund for the cos.ts oflegal services and law:enforcement work rendered by the Attorney General to the department financed out~ofthe special fund, where such c~ostshave been borne by the appropriation to the Attorney General from the General Fund. The ,language does not evince a’purpose to require that all the costs oflegal services and law enforcement **must** be borne by the appropriation to theAttorney General out ofthe GeneraJ’Fund.

Briefly stated, the situation is this: The appropriation to theAttorney General is for law enforcement generally; the appropriation to the department is for administration and enforcement ofa particular law or laws. The appropriation to the Attorney General may be expende.d only by and under his authority; the appropriation to the other department~may be expended only by and under the authority of that department’s head. Each appropriation complements, but does not supplement, the other.

We have undertaken an expression ofour views upon this question with some hesitancy, because it may appear to some that we are sitting inHon. George H. Sheppard, Page 6, O-2258

judgment upon a matter of interest to this department. The interest, however, is more~apparent than real, si.nce our holding does not place funds appropriated to another department under thejurisdiction ofthis department, but’only’ permits such funds to be expended upon the approval ofsuch other department. In any event,‘we are required by law to answer your question to the best of our ability. In purwance to this mandate, we have done so. The’foregoing represents the considered opinion ofthis department.

Yours very truly
ATTORNEY GENERALOF TEXAS

BY

RWF:PBP ”

ATTORNEY GENERAL 

### OF TEXAS Assistant

THIS OPINION CONSIDERED AND APPROVED IN LIMITED CONFERENCE.