Honorable George’ H. Sheppard Comptroller’

of PublicAccounts Austin, Texas

Dear Sir: Opinion NO. o-4788 Re: Authority of Comptroller to expend unused balances from preceding biennium of 2% of cigarette taxes set aside for enforcement purposes.
Your letter of August 20, 1942, requests the opinion of thisDepartment upon the following question:

May the Comptroller expend during the current biennlum theunused balance from the previousbiennium of the 2$$ of cigarette taxes set aside for enforcementpurposes?

The current appropriationbill (S.B. 423,Acts Reg. Sess

., 47th Leg.)provides:

“Twoand one haif per cent of the cigarette stamp tax and cigarette fees collected as provided by lathtogetherwith balances on hand at August 31, 1941 and August 31, 1942, are hereby appropriated to the Comptroller fromwhich the items above shall be paid, and for the adminlstration and enforcement of the cigaretteand occupation tax laws,”
Article 7047@, Sec. 30 (Chap. 241,Acts Reg. Sess, 44th Leg, as amended) provides:

“Thattwo and one-half per cent (2%) of the gross amount of taxesppermft and license fees and other funds derived under the”provisionsof this Act shall’be set aside in a special fund subject to the use of the Comptroller and somuch of said~ fund as may be necessary shallbe expended in the administration and enforcement of the provisions of this Act and so umch of the proceeds of two and one-half per cent (2=$$)

of said t.ax

and funds shallbe and the same is hereby approprfated for saidpurposes, same to be paid monthly as needed; provided, that payment for the,manufactu,ring or printfng of the cigarette.-_

Honorable George H. Sheppard, page 2 O-4788

ta'xstamps and for any expenses incurredby the Board incident thereto shallbe made from the revenue derived from the cigarette tax before such fund'is allocatedunder the provisions of this Act and so.m.zch of~'said

fund as may be necessary is hereby appropriated for suchpurpose; any unexpended portion of said funds.'sospecified shall at the end of each biennium be paid in the proper proportion to the funds towhich the cigarette tax fund shallbe apportioned."
The general'law,Art. 7047c, sec. 30, insetting aside 2% of the cigarette taxes for enforcement--purijoses, provides specifically that any portion of such 2s as may not be expended at the end of the blennium "shallat the end of eachbiennTum be paid in the'properproportion to the funds to~whlch the cigarette tax fund shallbe apportioned." The currentappropriation bill, by the provislon above quoted, attempts to make the balance.on hand~at the end of the precedingbiennium, towit,August 31, 1941, available for expenditureby the Comptroller. S.B. 423 thus conflictswith the general law, which allocates suchbalances to certain funds in the Treasury.

It is apparentlywell settled that an appropriation bill cannot repeal OP amend a general law. See our opinion O-2573 and authorities therein cited. S.B. 423 is the general departmental appropriationbill for the currentbiennium. Therefore, the provision in S.B, 423 does not repeal the requirement of the general law,Art, 7047c, Sec. 30, that balancesunexpended at the end of each biennium of the 2s enforcementfund shallbe paid into certain funds. It follows that suchbalance isnot available for expenditureby the Comptroller for enforcement purposes.

The provision of Art. XX, sec. 1 of H.B. 8, Reg. Sess., 47th Leg. quoted In your letter, towit: "Allrevenue, other than that part allocated for enforcementouruoses, derlved and collected from the taxes levied by Chapter 241,Acts of the Regular Session, Forty-fourth Legislature, and any amendments thereof or thtreto, shallbe hereafter and is hereby allocated as follows:

does not affect this conclusion. It does not purport co'enlarge the amount available to the Comptroller for expenditure, so as to allocateunexpended balance at the end of a biennium for expenditure for enforcementduring subsequent fiscal years.
You ask if the conclusion expressedabove applies also to theunused portion of allocations of one half of one per cent of the tax on oil.Honorable George Ha Sheppard, page 3 o-4788

Before any division or allotment of the

. . 0 occupation tax oneoil collectedunder the provisions of thrs Act, Is made one-half of one per cent of the gross amount of said tax shallbe set aside in the Treasury subject to the use of the Comptroller in the administrationand enforcementof the provisions of this Act, and so much of the saidproceeds of onehalf of one per cent of the occupation'taxon oL1 paidmonthly as may be needed in such admInistration and enforcement shallbe expended in the amounts and for purposes fixed by the Legislature in the General AppropriationBill. Any unexpended portion oftsaid fund so specified shall at the end of the fiscal year revert to the respective funds or accounts in proper proportions to which the occupation tax on oil Is proportionedat the end of the fiscal gear;
. . a *"

_.

The same reasoning and authority control thIs~sltualion. The general law provides for allocating the unexpended balance

S. B. 423 contains the following rider:

"Onehalf of oneper cent of the oil production tax collected; as providedbylaw togetherwith balances on hand at August 31, 1941,'theAugust 31, 1942, is hereby approprrated to-the Comptroller from which the items llsted above shallbe paid, and~.for the administrationand,enforcementof the natural resource and gross receipts tax laws."
Article 7057a, Sec. 9 (1) provides in part: I,

at the end of the fiscalyear to certain funds in the Treasury. The appropriationbill, attempting to repeal or amend the general lawsso as to authorize the Comptroller instead to expend such balances dur~ingthe present fiscal biennium for enforcement purposes, Is ineffective;the Comptrollermust abide the terms of the general law and allocate theunexpended balances in the enforcement account accordingly at the end of each fiscal year. Yours very truly ATTORNEY GENERAL OF TEXAS
RWF:nw:wc APPROVED SEP 3, 1942 s/Gerald C. Mann ATTORNEY GENERAL OF TEXAS By s/iI.W. Fairchild R.W. Fairchild Assistant

Approved Opinion Committee By s/&Q3 Chairman