Hon. George’ H. Sheppard ‘~ 

Comptroller of Public Accounts 

A~ustin,~ Texas 

Dear Sir: Opinion No. O-2258 

Rep: Payment of accounts incurred 

by Assistant Attorneys General 

for expenses in connection with 

the performance .of work’for 

other’state departments /AS paya’ble :out,of the- appropriatjons 

made to such other State departments.~ 

This will acknowledge receipt.of your letter of April 1’9, 1940. 

In this letter you quote the following protiisions of Senate Bill 427, Acts’ of 

the .46th Legislature: 

.” . The appropriations herein provided are to be, construed as 

the maximum sums to be appropriated to and for the several .pu+- 

poses named herein; and the amounts are intended to, cover’and 

shall cover the entire cost of then respective items and the same 

shall note be 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 of this State.” . 

.‘“It is’provided that no expenditure shall be made for traveling 

expenses by any department of~this State .in excess of the amount 

of motley itemized herein for said purpose. This provision shall 

be applicable whether the item for traveling expenses is to be paid 

out of the appropriation from the General Fund, from fees, receipts 

or special funds collected by virtue .of certain laws of this State, oy 

from~ other funds .(exclusiv& of Federal funds) available;,ior .use by a 

department.’ 

.“,Transfers from Special Fup$s:’ In order that the c,ost of legal 

work an@ law enforcement may be eiuitably distributed and charged 
Hon. 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 to the 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 of Hairdressers and Cosmetologists Fund, Enforcement 

Fees collected by Board of Insurance Commissioners, Enforcement Funds 

collected by Commissioner of Agriculture, Enforcement Funds collected 

by Bureau of Labor Statistics, Operators and Chauffeur’s License Fund, 

proceeds derived from the sale of alcoholic 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 of this department 

incur expeases in connection with the rendition of services directly for another State department, and ask the following three questions: 

“1. Would provision No. 1 be violated if accounts incurred 

under such conditions were paid out of appropriations 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. 3 7 
Hon. George H. Sheppard, Page 3, O-2258 

“3. If question No. 2 is answered in the negative, please 

give your interpretation of the force and effect of provision No. 

3.” 

The question to be determined is whether the appropriation made 

to another State department is available for the payment of the traveling 

and other expanses incurred by an Assistant Attorney General in direct and 

immediate connection-with the handling of a lawsuit or other matter for such 

State department. 

Effect, of course, is to be given to the intent of the Legislature. 

In ascertaining that intent, the ordinary rules of statutory construction are 

to be applied to the 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 of the authority of the department to make ~expenditutes therefrom, 

we are driven to the application of general principles to the appropriation 

bill. 

As a matter of sound business and accounting principle, an expense 

is properly to be regarded as that of the 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 of law enforcement 

generally. In the discharge of his 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 in the performance of their duties in that respect. That the Attorney General’s assistance is had, however, does not alter the fact that the primary duty of administration and enforcement, in such 

instances, is on the particular State department served, and the cost involved 

that incident to the administration and enforcement of the particular law. 

The function of an appropriation to a State department is to provide 

funds for the discharge of the duties imposed by law upon that department. 

Where a department is charged with the duty of administering and enforcing 

a particular law, the institution, prosecution and defense of lawsuits to that 

end is as much the duty of that department as it is of the Attorney 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 of a law enlists the services of the 

Attorney General in order to perform such duty, the expenses immediately 

incurred in connection with the performance of the service may be borne out 

of ~the appropriation made to that department, or out of the Attorney General’s 

appropriation. The availability of the appropriation to defray such expense 

is determined by ascertaining that the expense is incurred by permission of 

the department head for the purpose of administering and enforcing the laws 

committed to the department --not by the departmental connection of the 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 in the en- 

.forcement of the liquor ‘laws. (V ernon’s Revised Penal Statutes, Article. 666, 

Section 7(c).) The law provtdes that the salaries of these 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 the Assistants office space 

and stenographic service--but the law makes no provision for the payment of 

the expenses incurred by the Assistants in the performance of their duties. 

The 4,Sth Legislature, in the 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 to him and not to the 

Liquor Board for the faithful and efficient discharge of their duties. These 

Assistant Attorneys General were employees of the Attorney General, not of 

the Texas Liquor Control Board. Yet, under this state of facts, the expense 

incurred by these Ass.istants in prosecuting and defending suits’ for the Liquor 

Control Board were borne out of the Liquor Board appropriations, which was, 

we think, in accordance with the legislative intention. This was not because 

the Assistants wer~e employees of the Liquor Board, but because the expenses 

wara incurred directly and immediately in connection with the administration 

and enforcement of the liquor laws, which was the primary responsibility of 

Lthe Liquor Board, and to defray the expense of which 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 

.the Attorney General’s appropriation, their salaries to be paid out of 

the General Fund. This was done in order to enable the Attorney General 

to make use of the services of Assistants 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 of tbe Assistants’ time was ,not devoted 

to the work of that department. 

No question of supplementing an appropriation ~is’,~involved~. There 

are simply two appropriations available for defraying ,the same expenditure. 

The one,,may, only be expended with the approval of ,the Attorney General; 

the other only with the approval of the department head. The ,appropriation 

to the Attorney General is available for law enforc,emeut generally; the appropriation to the department is available only forthe administration and 

enforcement of the particular laws committed to the jurisdiction of that 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~e a contrary r.ule. ‘The purpose 

of such rider is to require reimbursement out of the special funds to the general fund for the cos.ts of legal services and law:enforcement work rendered 

by the Attorney General to the department financed out ~of the special fund, 

where such c~osts have 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 of legal services and law enforcement must be borne by the 

appropriation to the Attorney General out of the GeneraJ’Fund. 

Briefly stated, the situation is this: The appropriation to the Attorney General is for law enforcement generally; the appropriation to the department is for administration and enforcement of a 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 of our views upon this question 

with some hesitancy, because it may appear to some that we are sitting in 
Hon. 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 the jurisdiction of this department, 

but’only’ permits such funds to be expended upon the approval of such 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 of this department. 

Yours very truly 

ATTORNEY GENERALOF TEXAS 

BY 

RWF:PBP ” 

ATTORNEY GENERAL OF TEXAS 

Assistant 

THIS OPINION 

CONSIDERED AND 

APPROVED IN 

LIMITED 

CONFERENCE.