NO.3082

opinion construing “Limitation OfPayments” clause of Senate Bill 427. Regular Session, 46th Legislature, andholding

1.
2;

3.

4.

5. Clause is constitutional.

Board’s authority relates only to surpluses in funds dedicated or devoted to a department’s use andbenefit, but not appropriated to that department elsewhere than in the

“Limitation of Payments” clause.

Whereauthority of department to employ additional salaried workers is denied, Board has not the power to authorize such employment.

Board has no authority to authorize use of surplus, or anyportion of it, for “travelling expense;”

Board has authority to.deal only with

“actual” surpluses, not with “estimated” surpluses.

OFFICEOFTHEATTORNEY GENERAL

Hon. W.Lee O’Daniel Governor of Texas Austin, Texas August 30, 1939

Dear Sir: Opinion No. O-1321 Re: Gsneral Apropriation Bill-- Oonstitut P

onality of and authority, conferred upon the *Limitation or Payments” Board.

Wehave for acknowledgment wherein you request the opinion of thfour letter of August 23rd,
sDepartment upon the following questions:

“1. Did the Legislature have the constituional authority to confer upon the Boardwhich was created under the paragraph headed VLimitstion of Payments’ Of Section 2of Senate Bill No. 427, of the Regular Session of the Forty-sixth Legislature, such powers as are given to it In the Bill?

“2. If question No. 1 is answered in the affirmative, then to what fund does the authority of the Board relate7

“3. If question No. 1 is answered in the afflrmativs, maythe Board, in inatanoes where the speirial rider fOllOwing aparticular departmental appropriation, which provides that ‘No salaries except extra labor, shall be paid exceptHon. W.Lee G’Daniel, Page 2

those herein specifically itemized,’ authorize the employment of additional salaried individuals by department in the event the availability of funds andthe necessity for using the samefor such purpose is~properly demonstrated to the Board by the department head.

“4. Maythe Board, in anyevent, allow additional amounts for ‘traveling expenses’ over andabove the amounts specifically itemized for such purposes?

“5. If question No. 1is answered in the. affirmative, then please advise whether the Board is authorized to deal with an estimated surplus,
or must there be onhand in the special fund
an actual surplus before the Board is authorized to allow additional expenditures?”

In reply to your first question, webeg to advise that in our opinion the provision of the General Aupropriation Bill cresting the “Limitation of Payments” Board, composed of the Governor, the Treasurer, andthe Attorney Ganeral, is avalid exercise of the legislative authority, under the Constitution of the State of Texas. The “Limitation of Payments” clause is, in effect, anappropriation of certain funds for expenditure for stated purposes by the particular department of the State government, uponthe happening of
a certain condition, that is, that it shall become necessary to expend such funds in order that the functions.of the particular department maybe performed adequately. The appropriation is madeby the Legislature, and is complete andthe function of the Board is not to appropriate moneys, but to determine whether the conditions authorizina emendi- ;u&of moneys appropriated by the Legislature actually

. TheBoard acts in the capacity of afact-finding agenoy, to determine whether there is actually asur lus available for expenditure, andto determine whether P t is necessary, in order that the functions of the particular deDartment maybe performed adeauately. that such surplus
or-a portion thereof be expended. -.

Thevalidity of such aprovision in anappropriation bill wasrecognized in the case of Terre11 vs. Sparks,

‘135S.W. 519, wherein the Supreme Court of this State held sufficiently specific as anappropriation, anappropriation bill providing a sumof moneyfor the use of the Attorney General for certain purposes, to be expended byhim, by and with the approval of the Governor.

See also State ex rel. Normal Schools vs. Zimmerman, 183Wis. 132, 197N.W. 823. Cases apparently contra will be found in 91A.L.R. note at page 1512, but in most of the cases there cited, the constitutional requirements
are different from those in Texas. Wefind nothing in our Constitution expressly or impliedly prohibiting the Legislature from making anappropriation of moneys to be expended upon the happening of a condition subsequent, andfrom setting upafact-finding agency to determine whether or not such aondition subsequent has actually occurred, so as to authorize the expenditure of suoh appropriated sums.Hon. W.Lee O’Daniel, Page 3

Your second question maybe restated as follows:

“Towhat type of surplus fund does the authority of the ‘Limitation of Payments’ Bosrd relate?”

TheLimitation of Payments clause, 9s it appears in the General Rider to the General Appropriation Bill of the 46th Legislature, reads as follows:

wLimitation of Payments. Except as otherwise provided, whenever, by virtue of the provisions of this Act, items are to be paid out of fees, receipts, special funds or out of other funds available for
use by adepartment, it is the intention of the Legislature to limit expenditures out of said fees, receipts, special funds or other available funds to the purposes and in the amounts itemized herein, and it is so provided. If, however, the amount of the fees, receipts, special or other available funds herein referred to sre morethan sufficient to pey the items herein designated to be paid therefrom, the department to which the said fees, receipts, special funds or other available funds
are appropriated may, if necessary to adequately perform the functions of said department, use any portion of said surplus fees, receipts, special funds or other available funds; provided, however, that before doing so the head of such department shall, under oath, makeapplication, jointly, to the Governor, the Attorney General andthe State Treasurer setting forth in detail the necessity for using such surplus fees, receipts, special funds or other available funds anditemizing the purposes for which the sameare to be used. Unless the application is approved by at least two of the three persons aforementioned, the surplus fees, receipts, special funds or other available funds shall not be expended, Anyitem set out in the application can be deleted by decision of amajority of the three persons aforementioned. All applications which are approved or denied must be signed bythose voting to approve or deny same. Said applications, after approval or rejection, shall be riled with andretained by the State Auditor for aperiod of six months after the expiration of the biennium ending August 31, 1941, and shall remain open to public inspection during said period. All surplus fees, receipts, special funds, or other available funds onhand at the end of each year of the biennium shall revert to the General Revenue Fundof this State unless otherwise prohibited by law, or unless otherwise provided herein. No salary paid additional employees shall exceed the amountherein appropriated for similar positions. All disbursements shall be madeonwarrants issued bythe Comptroller onthe State Treasury.”

In answering your second question, the first point which presents itself for consideration is whether or not the term “other available funds.9 as used in the Limitation of Payments clause, is intended to include appropriations madefrom the General Revenue Fund. It is to be observedBon. W. Lee O'Daniel, Page 4

that the Limitation of Payments clause does not refer to appropriations madefrom the General Revenue Fund, but only relates to surpluses existing in fees, receipts, special funds or other available funds.

It will be observed that inthree separate and distinct places in the General Rider to the G8neral Appropriation Bill, the Legislature has referred sp8oific9lly to appropriations from the General Fund, in addition to

‘fees, receipts or special funds, andother available funds."

In the section of the Oeneral Rider relating to *traveling expenses," this sentence is found:

"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 byvirtue of certain laws of this State, or 

### rrm other funds, (8XClUSiVe of Federal funds) available for use by
a department."

In the section on "Salary Payments," this provision is found:

"Each department head'shall numberponsecutively the salaried positions in his de7artment for which
an appropriation is madeherein either out of the General Revenue Fund, fees receipts, special funds
or out of other funds avsiiable for use by such department) and opposite the numberof the position, he shall set out the title of the position andthe
neme‘of the person employed to fill the same."
Andin the section onthe "Preparation of'the Budget9 it is stated:

"The Board is directed to designate, with reference to each position, whether the s9meiS to be paid out of appropriation from the General Revenue Fund, from fees and/or receipts collected by Virtue of the laws of this State. or from other available funds. In the event the salary of aposition is to be paid jointly out or anappropriation from the General Revenue Fund, out of fess, receipts, special funds,
or out of other available funds, the Board of Control ah911 indicate the portion paid or to be paid from each. Nosalary items shall include anappropriation for more than one employee. TheBoard shall follow the sameprooedure in itemising other expenditures to bemadeby the departments of this State.9

In the "Limitation of Payments" clause the reference to appropriations from the General Fundis eliminated, and since in every other instance the Legislature, where it desired to include appropriations from the General Fund, has specifioally mentioned them, it must necessarily be presumed that the Legislature intended to exoluse appropriations from the General Fundfrom the "Limitation of Payments" clause. This conclusion is reenforced, whenweobserve that, in the very nature of things, there can be nosurplus in anappropriation from the General Fund, for, with respect to appropriations from the General Fund, the Legislature does not provideHon. W.Lee O'Daniel, Page 5

a definite andfixed sumof moneyto be available at all events, but provides for a'particular purpose Only such sum of money9s maybe necessary for that particular purpose, not to exceed the maximumamountmadeavailable for such purpose. This conclusion is compelled by the provisions of Section 1of the General Appropriation Bill, which provides in part 9s follows:

"That the several sumsof moneyherein specified or somuchthereof as maybe necessary, are hereby appropriated out of anymoneys in the State Treasury not otherwise appropriated,

...9 Having determined that the authority of the Board csnnot relate to supposed surpluses existing in appropriations madefrom the General Fund, the question naturally erises
as to whet type of funds it was contemplated by the Legislature should bewithin the jurisdiction of the Board set upin the Limitation of Payments clause.

It is apparent thet it ~9s not intended thereby to set upthe Board 88 the supervising agency by the authority of whiah all funds appropriated bythe Legislature
ror the various department should be spent, for the first sentence in the "Limitation of Payments" clause, whenoonsidered with the second sentence
, clearly evinces the intent of the Legislature that the Board should be authorized to deal only with "surpluses," andthat the departments are free to expend such funds as 9re provided it by the Legislature which donot comeunder the head of wsUrplus fundir~.w.

The existence of a surplus in aparticular special fund mayonly be ascertained by determining whether there is in that special fund anamountof moneyin excess of that which the Legislature has specifically authorized the department to expend without procuring the permission of the Board. Thefirst sentence in the wLimitation of Payments" clause would reflect clearly the intent of the Legislature to limit the expenditures which might bemadeby aBoard without authority from the Limitation of Payments Board to items of expenditures for which specific andlimited amounts have been provided in the Bill, were it not for the use of the phrase, at the beginning of the sentenoe. "except as otherwise provided." Is this hrase to be construed as applicable to the method provi ed for the expenditure of fi
a surplus fund by the second sentence of the "Limitation of Payments" clause, or is it to be construed as reflecting the intent of the Legislature that the various departments shall limit their expenditure9 to those items for which particular anddefinitely limited amounts are provided, ercept,in the instances where the Legislature has seen fit to appropriate to aparticular department, by special rider, the entire surplus, to the uses of the department for the p;;formance of the functions andduties imposed upon it by

. In determining this question, it is essential that
weexemine the Appropriation Bill as awhole, having due regard for the rule that the intention of the Legislature must be gathered from the entire instrument rather than from
aparticular andisolated portion thereof. In making such
an examination of the entire Bill, it becomes readily apparentHon. W. Lee O'Daniel, Page 6

that there are two separate anddistinct classes. of'appropriations madefrom fees, rsc8iptS. andSpecial funds.

Thefirst of these clams is typified by such departmental approprietions as those for the Board of County andDistritit RoadIndebtedness, the State HighwayDepartment, the State Department of Education, andthe State Banking Board.

In each of these examples, there is found a common characteristic. In eech of the exampled situations, there is distinct appropriation out of a special fund for various items definitely limited as to purpose andamount. But in each instance there is also, in addition to the items definitely limited 9s to purpose andamount, anappropriation of the surplus limited as to purpose but unlimited as to amount, excepting insofar es the amountof funds accruing to the special fund during the period of time concerned will automatically operate to limit the amountavailable for expenditure.

In the appropriation for the State Banking Departmentthe Legislature begins byappropriating for various purposes certain definite end fixed amounts. The special rider ettached to andaccompanying such appropriation prdvides in part as follows:

"Subject to the limitations set forth in the provisions appearing at the end of this Act, all appropriations herein madefor the State Banking Department shall be paid out of their receipts, andthe Commissioner shall reduce his expenditures
so 9s not to exceed the actual receipts collected.

"...For the purpose of enforcing the credit union'laws of this State, all fees collected under, andbyvirtue of Chapter 11, Acts of the 41st Legislature, andall unexpended balances are hereby appropriated to the State Banking Department."
Theappropriation for the Board of County andDistriot Road Indebtedness begins byproviding certain items definite as to amountendpurpose, for administrative expense, said items to be paid out of the County andRoad District highway fund. Thespecial rider appearing immediately following this appropriation as apart thereof, reads in part as follows:

"All other receipts andanyprior year's balance in the County andDistrict HighwayFund
are hereby appropriated for each of said years for the purpose of carrying out the provisions of Chapter 13, Oeneral Lawsof the Third Called Session of the 42ndLegislature, end any amendments thereto, including the payment of road bonded indebtedness and of special road districts in aocordance with said laws, andamendments."

For the division of the Department of Education styled "mployees of the Textbook andCurriculum Division andTextbook Depository" there ere provided certain items definitely limited as to purpose andamount. The special rider to the Department of Education appropriation reads in pert as follows:Hon. W.Lee O'Daniel, Page 7

eFor the purposes provided by lew, there are reepproprieted for the biennium ending August 31, 1941, to the State Board of Education, all incomes to, andanybalance in, the evailable School Fund andthe State Textbook Funds, except 9s otherwise appropriated by this Legislature, to be expended anddistributed in accordance with the laws of this State; provided that textbooks maybe purchased only from funds arising from the State advalorem school tax."
Andin the appropriation for the State HighwayDepartment, wefind various items provided, limited definitely
as to purpose andamount, the special rider appended thereto however, providing a8follows:

"Provided, that the above andforegoing amounts appropriated herein for the State HighwayDepartment andfor services rendered for other agencies of the State government to the State HighwayDepartment shell be paid out of the State HighwayFundupon warrants issued bythe State Comptroller, as provided by Chapter 1. Title 116, Revised Civil Statutes, 1925, andamendmentsthereto; provided further that ell funds or balances of funds onhandSeptember 1, 1939, andall funds aoming into the State Highwayfund, andderived from registration fees or other sources, after deducting the total of the speoii'io appropriations herein madeor hereby appropriated to the State HighwayDepartment for the establishment of
a system of state highways andthe construction and maintenance thereof, as contemplated andset forth in Chapter 1, Title 116, andChapter 186, general laws of the Regular Session of the 39th Legislature, andamendmentsthereto."
The other distinct class or type of eppr from 9 special fund is composed of those instances %%~,"iiY the Legislature has appropriated to the particular department, out of the special fund dedicated to the use of that de

zsrtment, certain items definitely limited as to purpose an amount, andhas madenodisposition of the surplus in such special fund by special rider appended to the particular departmental appropriation. Typical of this class of appro-. priation are the appropriations for the State Board of Barber Examiners, State Board of Dental Examiners, and the State Board of Hairdressers andCosmetologists.

In the appropriation for the Stete Board of Barber Examiners, the Legislature, after providing certain items definitely limited as to purpose end amount, continues in this special rider as follows:

"Subject to the limitations set forth in the provisions appearing at the end of this Act, the foregoing amounts for the Stete Board of Barber Examiners are hereby appropriated out of the State Board Barber Examiners fund ,..w,'

Andin the appropriation for the State Board of Dental Examiners, the Lsgisleture, after providing certainHon. W.Lee O'Daniel, Page S

items definitely limited as to purpose andamount, continues in the special rider appended thereto, as follows:

"Subjeot to the limitations set forth in the provisions appearing at the end of this Act, all appropriations madeherein for the State Board of Dental Examiners, shall be paid out of their local receipts.w
Andin the appropriation for the State Board of Hairdressers andCosmetologists, the Legislature, after providing certain items definitely limited as to subject and amount, continues in the special rider appended to that appropriation, as follows:

"Subject to the limitations set forth in the provisions appearing at the end of this Act, all appropriations madeherein for the State Board of Hairdressers andCosmetologists shall be paid out of their local receipts."

In none of these departmental appropriations, or in others of that type, dowefind anyattempt onthe part of the Legislature to provide for the disposition of any surplus in the special fund, by the special rider appended to the particular departmental appropriation.

Weare thus confronted with the problem. ofwhether the Legislature intended the wLimitation of Payments" clause to apply only to those instances where it has by the special rider 9pended to the particular departmental appropriation, appropr ated the surplus in the speoiel fund to the use and

P benefit of the particular department, or, on the other hand,
were the words "exce eliminate those T) t as otherwise provided" intended to spec fit apro riations the application of the "Limta P t of the surplus~from ion of Payments" clause, endwas that olause, therefore, intended as a conditional appropriation of those surpluses which might exist in special funds, in instances where the Legislature had, byrider to the articular departmental appropriation madeno effort to pace P such surpluses at the disposal oPthe particular department?

Whenthere are twopossible interpretations which ted upon n enaotment f the Legislat



### ~~~~~.“~~~n~~4sh~g~~aE~~st~~~t8see$i~~1eoB8~~~~~F~construction which leads to ai unreasonable andabsurd conclusion, if there is another possible interpretation which is
more rational and sensible. The rule is stated in 25Ruling Case Law, at page 1019, as follows:

"While the Legislature maypass absurd legislation if it is so inclined, before e aourt will adopt such a construction of astatute as will lead to an absurdity, it will inquire whether there is not someother interpretation possible whioh will not lead to that result. If the language employed admits of two constructions andaccording to one of themthe enactment would be absurd, if not mischievous, while according to the other it will be reasonable andwholesome, the construction which will lead to
an absurd result should be avoided.”Hon. W.Lee O'Daniel, Page 9

In support of these conclusions, that work cites manysuthorities from the SupremeCourt of the United States.

Andby this samework it is stated, at page 1025, that:

"Wheregreat inoonveni8noe will result from

. aparticular construction that consturction is to be avoided, unless the meaning of the Legislature be plain." Applying such rules to the problem under consideration, it would seemto bemanifest thet the Legislature did not intend that the "Limitation of Payment" clause should apply to such surpluses as were definitely appropriated by the Legislature to the use of aparticular department by special rider to the departmental appropriation. Tohold otherwise, would be to say that the Legislature intended to create an absurd andmischievous situation calculated to impair materially the functions of State government, and to result in great inconvenience in its administration.

At the outset it mustbe remebered that the members of the Limitation of Payments Board are public officials uponwhommost onerous duties, occupying practically all of their time, have been imposed by lsw. To impose uponthemthe additional duty, in effect, of supervising completely the expenditure of funds by such departments as the State HighwayDepartment andthe Board of County andDistrict Road Indebtedness, as well as the State Board of Education, would be to impair materially the performance of those duties the discharge of which is made their prime function by the Constitution andlaws which created their positions.

As illustrating the absurdity of such aninterpretation, wemayexamine the appropriation for the Board of County andDistrict Road Indebtedness. Theprime function for which this Board was crested by law is that of disbursing certain State funds, for certain State purposes, in the amountandaccording to the mannerset up in great detail by the lawwhich gives the Board its being. Wasit intended by the Legislature that before this Board could perform the very function for which it was oreated, that it should be required to demonstrate to the Limitation of Payments Board the necessity for so doing?

Wepass to the appropriation for the State HighwayDepartment. TheState HighwayDepartment is created by statute for the purpose of establishing, constructing, andmaintaining a system of highways in this State. The laws which create the Board have madeit the prime function andduty ofth8tBoard to determine where highways should be built, of what they should be constructed, andhowmuch andwhat character of cement should be used in their construction, if cement be used at all, whenthe necessity for maintenance work exists, andwhat character of maintenance work need be done in order to preserve andprotect such highways and insure maximumlife andservicability. The determination of such questions oalls for ahigh degree of familiarity with the subject

, andfor expert technical knowledge. Was it intended bythe Legislature that, as to the HighwayDepartment, the Governor, the Attorney General, andthe State Treasurer, the membersof the Limitation ofHon. W.Lee O'Daniel, Page 10

Payments Board, should determine the question as to whether
or not it wasnecessary to build a strip of highway from Whosit to whatsit, the route the highway should take (that is, whether it wasnecessary that the highway goby the particular route designated bythe HighwayDepartment), whether theqwtity or type of cement reaommendedby the HighwayDepartment for the particular project was actually necessary, or whether s lesser amountandan inferior grade might do', or whether moneyshould be spent for maintaining aparticular stretch of highway, as recommendedby the State HighwayDepartment, instead Ofabandoning it andbuilding anewone?

Alasit the intention of the Legislature, with respect to the appropriation for the State Banking Department, for the purpose of enforcing the credit union laws of the State of Texas, that the Limitation of Payments Board should determine whatwasnecessary to be done bythe Banking Department to enforce the credit union laws of the State andhowmuchmoneyshould be expended for that purpose? Wasit intended by the Legislature, with respect to the State Board of Educationthat the Limitation Of Payments Board should determine whether it wasreally necessary, if recommendedbythe State Board of Education, that
a certain numberof textbooks be purchased, andthat they be of the particular type recommendedby that Board?

Was it intended that the'niembers Ofthe Limitation of Payments Board read the textbooks which the State Department of Education proposes to purchase anddetermine thereby whether the necessity for purchasing aparticular textbook actually existed, or whether such textbook ~9s out-moded and out-dated and, therefore, it wasnot necessary that it be purchased?

It seems to us that to ask these questions is to provide the answers thereto. Certainly such 9 ridiculous and absurd situation wasnot within the contemplation of the Legislature. It was definitely not intended by the Legislature, it seems to us, that the administration of such affairs of government should be taken cut of the hands of those qualified and designated by the general laws ;B;E State to perform them, andplaced in the hands of whose experience, training, and opportunity of knowledge of the particular subjects involved is andmust necessarily be andremain so limited that the greatest confusion and inconvenience in the administration of such affairs of the State government would necessarily ensue.

wecall attention to the points wemakeabove, riation madeby the Legisonof the Board of Insurance Oommissioners. Wefind here that the Legislature has appropriated oertain items definitely limited 9s to purpose and amount out of a special fund and, by its rider, has appropriated not only such anamountfrom the special fund as is necessary to take care of the specific items provided, but has also appropriated the entire balance of the fund to be used bythe Department for employing additional help andfor defraying all other expenses necessary for the administration of Chapter 152, of the General Lawsof the Regular Session of the 42ndLegislature, andChapter 264Hon. W.Lee O'Daniel, Page 11

of the General Lawsof the 44th Legislature, andany and all amendmentsthereto andas amendedbySenate Bill 397, Acts, Regular Session of the 46th Legislature, 1939, and has further provided in said special rider as follows:

mPhehead of the department shall makeapplication to the Board of Control andreceive its approval in writing before employees, other than those itemized in the Appropriation Bill, are employed. Said application shall set out the
reaaona andnecessities ror the employment of the additional employees."

Wasthe absurdity intended here bythe Legislature that this Department should apply to the Board OfControl for permission to employ additional help, demonstrating the necessity therefor, andthereupon should also apply to the Limitation of Payments 3oard for the sameauthority? If one of these Boards granted such permission andthe other refused to do so, which action should govern? It seems to uathat bythis particular rider, the Legislature has definitely demonstrated its intention that appropriations of surpluses of this character, madeby the special rider to the particular depertmental appropriation, ere to beavailable for the use of the particular department according to the terms of the special rider, andare not intended to be available for the uses of the Department only in the event that the necessity for using themfor such purposes is demonstrated to the Board in the mannerprovided in the *Limitation of Payments" clause in the general rider.

The "Limitation of Payments" clause is susceptible of a construction which appears to bemuchmore reasonable, and it is that construction which weadopt as reflecting the true intent andpurpose of the Legislature in enacting such aprovision. Such interpretation is that it was intended by the Legislature, in the enactment of the "Limitation of Payments" clause, to makea conditional appropriation of surpluses in certain special funds, in instances where those surpluses hadnot been appropriated andmadeavailable to the particular department'by special rider attached to andmadeapart of the particular departmental appropriation. This construction, it appears to us, is morenearly in accord with reason, for it will be observed that the departments thus coming under the jurisdiction of the Board are, in the main, those departments of the State government whose prime function is not that of expending State moneys for the accomplishing of certain State purposes, but, onthe contrary, is that of rendering * certain type of service. They build noroads; they buy
no books; they discharge no bonded indebtedness for the State. As to them, the Limitation of Payments Board may operate effectively andefficiently, for the necessity that they be permitted to use the surplus in their particular fund arises from the possible need for additional clerical help, or moremoneyfor postage, and stationery. The purchase of material supplies and equipment is but incidental to anda small part of the work of the department, not its chief function.-

The "Limitation of Payments" clause may, perhaps, bemadethe more understandable by restating the first f~;;ion of it, but preserving its original meaning, as fol-Hon. W.Lee O'Daniel, Page 12

"It is the intention of the Legislature that expenditures out of fees, receipts, Special funds or other available funds shall be limited to the purposes andin the amountitemized in this Bill, except in those instances wherewe have provided otherwise. It those instances where provision otherwise has not been specifioally madeherein, if the amountof the fees, receipts, special or other available funds herein referred to, are more than sufficient to pay the items to be paid therefrom, the department to which the said items out of the said fees,. receipts, special funds or other available funds
are appropriated may, if necessary to adequately perform the function of such department, use anyportion of said surplus fees, receipts, special funds or other available funds, provided that before doing so, the head of such department shall, under oath, makeapplication, jointly, t0 the Governor, the Attorney General, andthe State Treasurer, setting forth in detail the necessity for using such surplus fees, receipts, speaial funds or other available funds anditemizing the purposes for which the sameare to be used." Answering your second question specifically, therefore, weare of the opinion that the authority of the Board relates only to those surpluses existing in funds dedicated or devoted to the uses of apartioular department, where anappropriation of such surplus in such dedicated funds to the particular department is not to be found elsewhere than in the Limitation of Payments clause.

In answer to your third question, webeg to advise that, in those instances where the Legislature has specifically limited the authority of aperticular department to expend its funds byproviding that "no salary except extra labor shall be paid except those herein specifically itemized,W this limitation uponthe purposes for which appropriated moneysmaybe expended binds not only the particular department, but also the Limitation of Payments Board. In the very nature of thin true, for, though the Boarfs, t3is must necessarily be should authorize the e dlture of a surnlus for the hiring of additional aa "penaried employees in such aninstance, the Deartment would nevertheless continue to be bound bythis flimitation upon its authority for wefind in the General Aproprietion Bill fonJ,apt&$~tq conferr duon the B rd

oeuthorfze the exoen88tu$eeo moneyg%or8ur- Ejher ex r ssl or

-c-----“, poses for which the Legislature has stated andprovided specifically that the Department shall not spend them.

The observations stated above, in the immediately preceding paragraph, apply even more forcibly to the Board's authority to allow additional expenditures for traveling expenses out of surpluses. In the General Rider to the General Appropriation Bill, wefind the fo,llowing:

"It is provided that noexpenditure shall bemadefor traveling expenses by anydepartment of this State in exoess of the amountof money itemized herein for said purpose. This provision shall be applicable whether the item forW.Lee O’Daniel, Page 13 Hon.

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, or from other funds (exclusive of Federal funds) available for use by a department.*

This provisionis clear, explicit, andneeds
no construction, for it amounts to anabsolute prohibition against the expenditure of agreater amountfor traveling expenses than hss been specifically allowed for such purpose bythe Legislature itself. Sinoe wefind no authority conferred uponthe Board, either expressly or impliedly, to ignore this provision in dealing with surpluses, it follows that the board la without authority to allow any additional amountwhatsoever for traveling expenses to anydepartment out of anyfunds over which it has juriadiction. Answering your last question. you are advised that, in our opinion, the Limitation of Payments Board is authorized to deal only with “actual surplus8s.w In other words, there mustbe onhand in the partioular special fund subject to the jurisdiction of the Board
an actual surplus before the Board mayallow additional expenditures, and, of course, it follows t’et the Board maynot authorize additional expenditures beyond the amountof the actual surplus available. TheLimitstion of Payments clause in terms relates only to apresently existing, andnot aprospectively available, surplus, for it states:

“If, however, the amountof the fees, receipts, special or other available funds harein referred to are more than sufficient to pay the items herein designated to be paid therefrom, the department to which the said fees, receipts, special funds or other available funds
are appropriated, may, if necessary to adequately perform the functions of said department, use anyportion of said surplus fees, receipts, special funds, or other available funds;

...v
Tohold that the Board is authorized to allow obligations to be incurred by the Department against an estimated surplus which mayor maynot accrue, would be to doviolence to the legislative intent, gleaned from
an examination of the entire appropriation bill, that expenditures madeand obligations incurred byany department of the State government shall not exceed the amount actually available to that Department for expenditure.

Wetrust that the foregoing will serve to adequately answer the various questions presented byyou.
Yours very truly

AlTORNEY

GENERAL

OFTEXAS

BY R. W.Fairchild

ASSiStSnt RWF:pbpHon. W.Lee OIDaniel, Page 14

This opinion has been considered in conference, approved, end ordered recorded.

Gerald C

. HaIann ATI'ORNEY

GENERAL

OFTEXAS