NO. 3082 

opinion construing “Limitation Of Payments” 

clause of Senate Bill 427. Regular Session, 

46th Legislature, and holding 

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 and benefit, but not appropriated 

to that department elsewhere than in the 

“Limitation of Payments” clause. 

Where authority 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 any portion of it, for “travelling expense ;” 

Board has authority to.deal only with 

“actual” surpluses, not with “estimated” 

surpluses. 

OFFICE OF THE ATTORNEY GENERAL 

Hon. W. Lee O’Daniel 

Governor of Texas 

Austin, Texas 

August 30, 1939 

Dear Sir: Opinion No. O-1321 

Re: Gsneral A propriation Bill-- 

Oonstitut P onality of and authority, conferred upon the 

*Limitation or Payments” 

Board. 

We have for acknowledgment 

wherein you request the opinion of th f 

our letter of August 23rd, 

s Department upon the following questions: 

“1. Did the Legislature have the constituional 

authority to confer upon the Board which was created 

under the paragraph headed VLimitstion of Payments’ Of 

Section 2 of 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, 

may the Board, in inatanoes where the speirial rider fOllOwing a particular departmental appropriation, which provides 

that ‘No salaries except extra labor, shall be paid except 
Hon. 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 and the necessity for using the same for 

such purpose is~properly demonstrated to the 

Board by the department head. 

“4. May the Board, in any event, allow additional amounts for ‘traveling expenses’ over 

and above the amounts specifically itemized for 

such purposes? 

“5. If question No. 1 is answered in the. 

affirmative, then please advise whether the Board 

is authorized to deal with an estimated surplus, 

or must there be on hand in the special fund 

an actual surplus before the Board is authorized 

to allow additional expenditures?” 

In reply to your first question, we beg 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, and the Attorney Ganeral, 

is a valid exercise of the legislative authority, under 

the Constitution of the State of Texas. The “Limitation of 

Payments” clause is, in effect, an appropriation of certain 

funds for expenditure for stated purposes by the particular 

department of the State government, upon the 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 may be performed adequately. The 

appropriation is made by the Legislature, and is complete 

and the 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 

. The Board acts in the capacity of a fact-finding 

agenoy, to determine whether there is actually a sur lus 

available for expenditure, and to determine whether P t is 

necessary, in order that the functions of the particular 

deDartment may be performed adeauately. that such surplus 

or-a portion thereof be expended. -. 

The validity of such a provision in an appropriation bill was recognized in the case of Terre11 vs. Sparks, 

‘135 S.W. 519, wherein the Supreme Court of this State held 

sufficiently specific as an appropriation, an appropriation 

bill providing a sum of money for the use of the Attorney 

General for certain purposes, to be expended by him, by and 

with the approval of the Governor. 

See also State ex rel. Normal Schools vs. Zimmerman, 183 Wis. 132, 197 N.W. 823. Cases apparently contra 

will be found in 91 A.L.R. note at page 1512, but in most 

of the cases there cited, the constitutional requirements 

are different from those in Texas. We find nothing in our 

Constitution expressly or impliedly prohibiting the Legislature from making an appropriation of moneys to be expended 

upon the happening of a condition subsequent, and from 

setting up a fact-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 may be restated as follows: 

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

The Limitation 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 a department, 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 more than 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, make application, jointly, to 

the Governor, the Attorney General and the State 

Treasurer setting forth in detail the necessity 

for using such surplus fees, receipts, special 

funds or other available funds and itemizing the 

purposes for which the same are 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, Any item set out in the 

application can be deleted by decision of a majority 

of the three persons aforementioned. All applications which are approved or denied must be signed 

by those voting to approve or deny same. Said 

applications, after approval or rejection, shall 

be riled with and retained by the State Auditor 

for a period 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 on hand at the end of each year 

of the biennium shall revert to the General Revenue 

Fund of this State unless otherwise prohibited by 

law, or unless otherwise provided herein. No 

salary paid additional employees shall exceed the 

amount herein appropriated for similar positions. 

All disbursements shall be made on warrants issued 

by the Comptroller on the 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 

made from the General Revenue Fund. It is to be observed 
Bon. W. Lee O'Daniel, Page 4 

that the Limitation of Payments clause does not refer to 

appropriations made from 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, and other 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 

Of the'appropriation from the General Fund, from 

fees, receipts or special funds collected by virtue 

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 number ponsecutively 

the salaried positions in his de 

7 

artment for which 

an appropriation is made herein 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 number of the position, 

he shall set out the title of the position and the 

neme‘of the person employed to fill the same." 

And in the section on the "Preparation of'the Budget9 

it is stated: 

"The Board is directed to designate, with 

reference to each position, whether the s9me iS 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 a position is to be paid 

jointly out or an appropriation 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. No salary items shall include an appropriation 

for more than one employee. The Board shall follow 

the same prooedure in itemising other expenditures 

to be made by the departments of this State.9 

In the "Limitation of Payments" clause the reference 

to appropriations from the General Fund is 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 Fund from the "Limitation of Payments" clause. This 

conclusion is reenforced, when we observe that, in the very 

nature of things, there can be no surplus in an appropriation from the General Fund, for, with respect to appropriations from the General Fund, the Legislature does not provide 
Hon. W. Lee O'Daniel, Page 5 

a definite and fixed sum of money to be available at all 

events, but provides for a'particular purpose Only such sum 

of money 9s may be necessary for that particular purpose, 

not to exceed the maximum amount made available for such 

purpose. This conclusion is compelled by the provisions 

of Section 1 of the General Appropriation Bill, which provides in part 9s follows: 

"That the several sums of money herein 

specified or so much thereof as may be necessary, 

are hereby appropriated out of any moneys in the 

State Treasury not otherwise appropriated, . ..9 

Having determined that the authority of the Board 

csnnot relate to supposed surpluses existing in appropriations 

made from the General Fund, the question naturally erises 

as to whet type of funds it was contemplated by the Legislature 

should be within the jurisdiction of the Board set up in the 

Limitation of Payments clause. 

It is apparent thet it ~9s not intended thereby 

to set up the Board 88 the supervising agency by the authority of whiah all funds appropriated by the Legislature 

ror the various department should be spent, for the first 

sentence in the "Limitation of Payments" clause, when oonsidered with the second sentence , clearly evinces the intent 

of the Legislature that the Board should be authorized to 

deal only with "surpluses," and that the departments are 

free to expend such funds as 9re provided it by the Legislature which do not come under the head of wsUrplus fundir~.w. 

The existence of a surplus in a particular special 

fund may only be ascertained by determining whether there 

is in that special fund an amount of money in excess of 

that which the Legislature has specifically authorized the 

department to expend without procuring the permission of the 

Board. The first sentence in the wLimitation of Payments" 

clause would reflect clearly the intent of the Legislature 

to limit the expenditures which might be made by a Board 

without authority from the Limitation of Payments Board to 

items of expenditures for which specific and limited 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 fi ed for the expenditure of 

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 and definitely limited amounts are provided, 

ercept,in the instances where the Legislature has seen fit 

to appropriate to a particular department, by special rider, 

the entire surplus, to the uses of the department for the 

p;;formance of the functions and duties imposed upon it by 

. 

In determining this question, it is essential that 

we exemine the Appropriation Bill as a whole, having due 

regard for the rule that the intention of the Legislature 

must be gathered from the entire instrument rather than from 

a particular and isolated portion thereof. In making such 

an examination of the entire Bill, it becomes readily apparent 
Hon. W. Lee O'Daniel, Page 6 

that there are two separate and distinct classes. of'appropriations made from fees, rsc8iptS. and Special funds. 

The first of these clams is typified by such 

departmental approprietions as those for the Board of County 

and Distritit Road Indebtedness, the State Highway Department, 

the State Department of Education, and the 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 and amount. But in 

each instance there is also, in addition to the items 

definitely limited 9s to purpose and amount, an appropriation 

of the surplus limited as to purpose but unlimited as to 

amount, excepting insofar es the amount of funds accruing 

to the special fund during the period of time concerned will 

automatically operate to limit the amount available for 

expenditure. 

In the appropriation for the State Banking Department the Legislature begins by appropriating for various 

purposes certain definite end fixed amounts. The special 

rider ettached to and accompanying 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 made for the State Banking 

Department shall be paid out of their receipts, 

and the 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, 

and by virtue of Chapter 11, Acts of the 41st 

Legislature, and all unexpended balances are hereby appropriated to the State Banking Department." 

The appropriation for the Board of County and Distriot Road Indebtedness begins by providing certain items 

definite as to amount end purpose, for administrative expense, 

said items to be paid out of the County and Road District 

highway fund. The special rider appearing immediately 

following this appropriation as a part thereof, reads in 

part as follows: 

"All other receipts and any prior year's 

balance in the County and District Highway Fund 

are hereby appropriated for each of said years 

for the purpose of carrying out the provisions of 

Chapter 13, Oeneral Laws of the Third Called Session of the 42nd Legislature, end any amendments 

thereto, including the payment of road bonded 

indebtedness and of special road districts in aocordance with said laws, and amendments." 

For the division of the Department of Education 

styled "mployees of the Textbook and Curriculum Division 

and Textbook Depository" there ere provided certain items 

definitely limited as to purpose and amount. 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, and any balance in, the evailable School Fund 

and the State Textbook Funds, except 9s otherwise 

appropriated by this Legislature, to be expended 

and distributed in accordance with the laws of this 

State; provided that textbooks may be purchased 

only from funds arising from the State ad valorem 

school tax." 

And in the appropriation for the State Highway Department, we find various items provided, limited definitely 

as to purpose and amount, the special rider appended thereto 

however, providing a8 follows: 

"Provided, that the above and foregoing amounts 

appropriated herein for the State Highway Department 

and for services rendered for other agencies of the 

State government to the State Highway Department 

shell be paid out of the State Highway Fund upon 

warrants issued by the State Comptroller, as provided 

by Chapter 1. Title 116, Revised Civil Statutes, 1925, 

and amendments thereto; provided further that ell 

funds or balances of funds on hand September 1, 1939, 

and all funds aoming into the State Highway fund, 

and derived from registration fees or other sources, 

after deducting the total of the speoii'io appropriations herein made or hereby appropriated to the 

State Highway Department for the establishment of 

a system of state highways and the construction and 

maintenance thereof, as contemplated and set forth 

in Chapter 1, Title 116, and Chapter 186, general 

laws of the Regular Session of the 39th Legislature, 

and amendments thereto." 

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 

z 

srtment, certain items definitely limited as to purpose an 

amount, and has made no disposition 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 and Cosmetologists. 

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,' 

And in the appropriation for the State Board of 

Dental Examiners, the Lsgisleture, after providing certain 
Hon. W. Lee O'Daniel, Page S 

items definitely limited as to purpose and amount, 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 made herein for the State Board of 

Dental Examiners, shall be paid out of their local 

receipts.w 

And in the appropriation for the State Board of 

Hairdressers and Cosmetologists, 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 made herein for the State Board 

of Hairdressers and Cosmetologists shall be paid 

out of their local receipts." 

In none of these departmental appropriations, or 

in others of that type, do we find any attempt on the 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. 

We are thus confronted with the problem. of whether 

the Legislature intended the wLimitation of Payments" clause 

to apply only to those instances where it has by the special 

rider 9 pended to the particular departmental appropriation, 

appropr P ated the surplus in the speoiel fund to the use and 

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 ap ro riations 

the application of the "Lim P ta t 

of the surplus~from 

ion of Payments" clause, 

end was that olause, therefore, intended as a conditional 

appropriation of those surpluses which might exist in special 

funds, in instances where the Legislature had, by rider to 

the articular departmental appropriation made no effort 

to p P ace such surpluses at the disposal oP the particular 

department? 

When there are two possible interpretations which 

ted upon n enaotment f the Legislat 

~~~~~.“~~~n~~4sh~g~~aE~~st~~~t8see$i~~1eoB8~~~~~F~ construction which leads to ai unreasonable and absurd conclusion, if there is another possible interpretation which is 

more rational and sensible. The rule is stated in 25 Ruling 

Case Law, at page 1019, as follows: 

"While the Legislature may pass absurd legislation if it is so inclined, before e aourt will 

adopt such a construction of a statute as will lead 

to an absurdity, it will inquire whether there is 

not some other interpretation possible whioh will 

not lead to that result. If the language employed 

admits of two constructions and according to one of 

them the enactment would be absurd, if not mischievous, 

while according to the other it will be reasonable 

and wholesome, 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 

many suthorities from the Supreme Court of the United States. 

And by this same work it is stated, at page 1025, 

that: 

"Where great inoonveni8noe will result from . 

a particular 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 seem to be manifest 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 a particular department by 

special rider to the departmental appropriation. To hold 

otherwise, would be to say that the Legislature intended 

to create an absurd and mischievous situation calculated 

to impair materially the functions of State government, 

and to result in great inconvenience in its administration. 

At the outset it must be remebered that the 

members of the Limitation of Payments Board are public 

officials upon whom most onerous duties, occupying practically all of their time, have been imposed by lsw. To 

impose upon them the additional duty, in effect, of supervising completely the expenditure of funds by such departments as the State Highway Department and the Board of 

County and District 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 and laws which 

created their positions. 

As illustrating the absurdity of such an interpretation, we may examine the appropriation for the Board of 

County and District Road Indebtedness. The prime function 

for which this Board was crested by law is that of disbursing certain State funds, for certain State purposes, in 

the amount and according to the manner set up in great 

detail by the law which gives the Board its being. Was it 

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? 

We pass to the appropriation for the State Highway Department. The State Highway Department is created 

by statute for the purpose of establishing, constructing, 

and maintaining a system of highways in this State. The 

laws which create the Board have made it the prime function 

and duty ofth8tBoard to determine where highways should 

be built, of what they should be constructed, and how much 

and what character of cement should be used in their construction, if cement be used at all, when the necessity 

for maintenance work exists, and what character of maintenance work need be done in order to preserve and protect 

such highways and insure maximum life and servicability. 

The determination of such questions oalls for a high degree 

of familiarity with the subject , and for expert technical 

knowledge. Was it intended by the Legislature that, as 

to the Highway Department, the Governor, the Attorney General, 

and the State Treasurer, the members of the Limitation of 
Hon. W. Lee O'Daniel, Page 10 

Payments Board, should determine the question as to whether 

or not it was necessary to build a strip of highway from 

Whosit to whatsit, the route the highway should take (that 

is, whether it was necessary that the highway go by the 

particular route designated by the Highway Department), 

whether the qwtity or type of cement reaommended by 

the Highway Department for the particular project was 

actually necessary, or whether s lesser amount and an 

inferior grade might do', or whether money should be spent 

for maintaining a particular stretch of highway, as recommended by the State Highway Department, instead Of abandoning it and building a new one? 

Alas it 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 what was necessary to be done by the Banking Department to enforce the credit union laws of the 

State and how much money should be expended for that purpose? Was it intended by the Legislature, with respect 

to the State Board of Education that the Limitation Of 

Payments Board should determine whether it was really necessary, if recommended by the State Board of Education, that 

a certain number of textbooks be purchased, and that they 

be of the particular type recommended by that Board? 

Was it intended that the'niembers Of the Limitation 

of Payments Board read the textbooks which the State Department of Education proposes to purchase and determine thereby 

whether the necessity for purchasing a particular textbook 

actually existed, or whether such textbook ~9s out-moded 

and out-dated and, therefore, it was not 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 was not 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, and placed in the hands of 

whose experience, training, and opportunity of knowledge 

of the particular subjects involved is and must necessarily 

be and remain so limited that the greatest confusion and 

inconvenience in the administration of such affairs of the 

State government would necessarily ensue. 

we call attention to 

the points we make above, 

riation made by the Legison of the Board of Insurance 

Oommissioners. We find 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 an amount from 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 by the Department for employing additional help 

and for defraying all other expenses necessary for the 

administration of Chapter 152, of the General Laws of the 

Regular Session of the 42nd Legislature, and Chapter 264 
Hon. W. Lee O'Daniel, Page 11 

of the General Laws of the 44th Legislature, and any and 

all amendments thereto and as amended by Senate Bill 397, 

Acts, Regular Session of the 46th Legislature, 1939, and 

has further provided in said special rider as follows: 

mPhe head of the department shall make application to the Board of Control and receive its 

approval in writing before employees, other than 

those itemized in the Appropriation Bill, are 

employed. Said application shall set out the 

reaaona and necessities ror the employment of 

the additional employees." 

Was the absurdity intended here by the Legislature 

that this Department should apply to the Board Of Control 

for permission to employ additional help, demonstrating 

the necessity therefor, and thereupon should also apply 

to the Limitation of Payments 3oard for the same authority? 

If one of these Boards granted such permission and the 

other refused to do so, which action should govern? 

It seems to ua that by this particular rider, the Legislature has definitely demonstrated its intention that 

appropriations of surpluses of this character, made by 

the special rider to the particular depertmental appropriation, ere to be available for the use of the particular department according to the terms of the special rider, 

and are not intended to be available for the uses of the 

Department only in the event that the necessity for using 

them for such purposes is demonstrated to the Board in 

the manner provided in the *Limitation of Payments" clause 

in the general rider. 

The "Limitation of Payments" clause is susceptible of a construction which appears to be much more 

reasonable, and it is that construction which we adopt as 

reflecting the true intent and purpose of the Legislature 

in enacting such a provision. Such interpretation is that 

it was intended by the Legislature, in the enactment of 

the "Limitation of Payments" clause, to make a conditional 

appropriation of surpluses in certain special funds, in 

instances where those surpluses had not been appropriated 

and made available to the particular department'by special 

rider attached to and made a part of the particular departmental appropriation. This construction, it appears to us, 

is more nearly 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, on the contrary, is that of rendering 

* certain type of service. They build no roads; they buy 

no books; they discharge no bonded indebtedness for the 

State. As to them, the Limitation of Payments Board may 

operate effectively and efficiently, 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 more money for postage, and stationery. The 

purchase of material supplies and equipment is but incidental to and a small part of the work of the department, 

not its chief function.- 

The "Limitation of Payments" clause may, perhaps, 

be made the 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 and in the amount itemized in 

this Bill, except in those instances where we 

have provided otherwise. It those instances 

where provision otherwise has not been specifioally made herein, if the amount of 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 

any portion of said surplus fees, receipts, special 

funds or other available funds, provided that before doing so, the head of such department shall, 

under oath, make application, jointly, t0 the 

Governor, the Attorney General, and the State 

Treasurer, setting forth in detail the necessity 

for using such surplus fees, receipts, speaial 

funds or other available funds and itemizing 

the purposes for which the same are to be used." 

Answering your second question specifically, 

therefore, we are of the opinion that the authority of the 

Board relates only to those surpluses existing in funds 

dedicated or devoted to the uses of a partioular department, where an appropriation 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, we beg to advise 

that, in those instances where the Legislature has specifically 

limited the authority of a perticular department to expend 

its funds by providing that "no salary except extra labor 

shall be paid except those herein specifically itemized,W 

this limitation upon the purposes for which appropriated 

moneys may be expended binds not only the particular 

department, but also the Limitation of Payments Board. 

In the very nature of thin 

true, for, though the Boar f 

s, t3is must necessarily be 

should authorize the e 

dlture of a surnlus for the hiring of additional aa "p 

enaried 

employees in such an instance, the De artment would nevertheless continue to be bound by this fl imitation upon its 

authority for we find in the General Ap roprietion Bill 

fonJ,apt&$~tq conferr d u on the B rd 

o euthorfze the exoen88tu$eeo moneyg %or 8ur- Ejher ex r ssl or 

-c-----“, 

poses for which the Legislature has stated and provided 

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, we find the fo,llowing: 

"It is provided that no expenditure shall 

be made for traveling expenses by any department 

of this State in exoess of the amount of money 

itemized herein for said purpose. This provision shall be applicable whether the item for 
Hon. W. Lee O’Daniel, Page 13 

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, and needs 

no construction, for it amounts to an absolute prohibition 

against the expenditure of a greater amount for traveling 

expenses than hss been specifically allowed for such purpose by the Legislature itself. Sinoe we find no authority conferred upon the 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 amount whatsoever for traveling expenses 

to any department out of any funds 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 must be on hand in the partioular 

special fund subject to the jurisdiction of the Board 

an actual surplus before the Board may allow additional 

expenditures, and, of course, it follows t’et the Board 

may not authorize additional expenditures beyond the 

amount of the actual surplus available. The Limitstion 

of Payments clause in terms relates only to a presently 

existing, and not a prospectively available, surplus, 

for it states: 

“If, however, the amount of 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 

any portion of said surplus fees, receipts, 

special funds, or other available funds; . ..v 

To hold that the Board is authorized to allow 

obligations to be incurred by the Department against an 

estimated surplus which may or may not accrue, would be 

to do violence to the legislative intent, gleaned from 

an examination of the entire appropriation bill, that expenditures made and obligations incurred by any department of the State government shall not exceed the amount 

actually available to that Department for expenditure. 

We trust that the foregoing will serve to adequately answer the various questions presented by you. 

Yours very truly 

AlTORNEY GENERAL OF TEXAS 

BY 

R. W. Fairchild 

ASSiStSnt 

RWF:pbp 
Hon. W. Lee OIDaniel, Page 14 

This opinion has been considered in conference, 

approved, end ordered recorded. 

Gerald C . HaIann 

ATI'ORNEY GENERAL OF TEXAS