HonorableGso . if. Cox, M.D. 

State Health Officer 

Austin, Texas 

Dear Sir: Opinion No. O-4224 

Re: Whether the balance in Vital 

Statistics Fund may be devoted 

to the construction of a building for the use of the Bureau 

of Vital Statistics. 

In your letter of November 24th you explain the recent great increase in the work of the Bureau of Vital Statistics which makes 

necessary enlarged facilities for carrying on the work of the 

Bureau and storing its records. 

After setting out the applicable provisions of the current approR 

riation for the Bureau of Vital Statistics contained in Senate Bill 

o. 423, Regular Session, 47th Legislature and in the general statutes pertaining to the Bureau, you request our opinion on the following question: 

'We shall ask you to advise us whether the above funds, together with any additions thereto deposited during the biennium 

beginning September 1, 1941, can be used in constructing a 

building for offices and working space for the employees and. 

personnel of the Bureau ofVita Statistics, and a fire proof 

vault for the protection and safe preservation of the records 

and files of that Bureau, as is provided~ for under Article 

4477, Rule 35a, R.C.S.rr 

We quote then provisions of the gene~ral law and curr'ent appropriation bill and the existing facts applicable to this problem, as set 

out in your letter: 

"Rule 35a of Article 4477, R.C.S. State of Texas, in part 

reads as follows: 'The Board of Control shall provide suitable 

offices for the Bureau of Vital Statistics in the State Capitol or in other suitable buildings at Austin which shall be 

properly equipped with fire proof vault and filing cases for 

the permanent and safe preservation of.all records made and 

returned under this Act.' 
Honorable Ceo. Ii. Cox, M.D., page 2 O-4224 

"Senate Bill 423, Regular Session, 47th Legislature, Sections 

ti0 to 97, dppropriated various sums for salaries for employees 

of the Bureau of Vital Statistics, and in addition thereto 

appropriated certain fees as follows: 'Subject to the limitations appearing at the end of this Act all fees received under 

the provisions of Article 4477, Rule 54a and deposited to the 

Vital Statistics Fund are hereby appropriated for each year 

of the biennutn beginning September 1, 1941, for the uses and 

purposes prescribed by the Above Act, and any amenbents thereto, including salaries, maintenance, travel and contingent 

expense. This appropriation shall be in addition to the itemized appropriation herein made for the Bureau of Vital Statistics.' 

"Rule 54a of Article 4477 R.C.S. reads in part as follows: 

"And the State Registrar 1 Registrar of Vital Statistics) shall 

keep a true and correct account of all fees by bin: received under these provisions, and turn the sane over to the State 

Treasurer at the close of each month,.and all such fees shall 

be kept by the State Treasurer in a special and separate fund 

to be known as the "Vital Statistics Fund", and the amount so 

deposited in this fund may be used for defraying expenses incurred in the enforcement and operation of this Act.' 

"For your information may we point our tha~t the Bureau of Vital 

Statistics has no.inspectors or field workers who administer 

or enforce the Vital Statistics Law in anv manner whatsoever. 

The entire enforcement and operation of this Act is carried on 

through the office personnel and the enforcement and operation 

consists of properly checking records, filing saine, and seeing 

that these records are preserved, their chief problem of enforcement being the storing of these records in places where 

they are not subject to fire hazards, loss and theft. 

*As of November 21, 1941, we are advised by the State Treasurer 

that the Vital Statistics Fund has a balance of $30,251.34. 

The collections of fees as averaged for the ty:relve months ending August 21, 1941, are $1,912.00 per month. The expenditure of the above balance and a portion of the monthly income 

from fees would not reduce the efficiency of the Bureau of 

Vital Statistics." 

The answer to your question turns upon this point: whether the proviso in the appropriation bill, "all fees received under the provisions of Article 4477, Rule 54a, Andy deposited to the Vital Statixtics Fund sre hereby appropriated...for the uses and :?urposes 

prescribed by the above Act, and any amendments thereto, including 

salaries, naintenance, tr;;vel and contingent expense" may be construed so as to authorize the Bureau of Vital Statistics to devote 

the balance of $30,251.34 in its special fund, and subsequent additions thereto, to the construction of a building for use of the 
Honorable Geo. W. Cox, M.D., page 3 O-4224 

Bureau, in the absence of an express legislative sp-i>ropriation for 

such purpose We think it clearly may not be so construed. As 

said by the Austin Court of Civil Appeals in State v. 

163 S.W. 1020, (writ of error refused) at page 1022: 

Haldeman, 

" . ..The Legislature might authorize commissioners to contract 

for the erection of a public building of such a character and 

at such cost as to them might seem best, but'such a proceeding would, to say the least of it, be unwise, and such has 

not been the usual,course with reference to public buildings 

in Texas. It is well known that it is the custom with Legislatures to appoint committees to investigate the needs of 

public institutions, to hear evidence and visit and inspect 

such institutions, and to pass appropriation bills for definite 

amounts for the support, maintenance, and erection of builaings therefor....." 

In the Haldeman case the court held that the Legislature, having 

appropriated $47,000 for the erection of buildings at the State 

Lunatic Asylum, any additional sum expended thereon was unauthorized, 

and was not supported by pre-existing law as required by Article 

III, Section 44, of the Texas Constitution, so that no subsequent 

appropriation could be made to pay for the excess cost of the buildings above the amount originally appropriated. The court refused 

to recognize any authority, implied or otherwise, in the Board of 

Directors to authorize any enlargement of the buildings as authorized 

by the Legislature. Said the court: 

"We do not think by the passage of the appropriation bill 

above referred to, wherein the specific amount of $47,500 was 

appropriated for the buildings for the lunatic asylum, the 

Legislature intended to grant the directors of said institution discretion to incur liability on the part of the state 

for more than this amount . . . . . . n 

To the same effect is the holding in Nichols v. State, 32 S.X. 

452. See also Ft. Worth Calvary Club v. Sheppard, $3 S.W. (2d) 660. 

Article VIII, Section 6, of the Constitution of Texas, provides: 

"No money shall be drawn from the Treasury but in pursuance of 

specific appropriations made by law... f1 ';le do not believe that the 

language of the appropriation to the Bureau of Vital Statistics, 

which reads:" ,.-for the uses and purposes prescribed by the above 

Act . ..including salaries, maintenance, travel 2nd contigent expense" 

can be construed as a "specific appropriation" for the construction of a public building as that term is used in Article VIII, 

Section 6. Pickle v. Finley, 91 Tex. 484, 44 S.W. 480; National 

Biscuit Co. v. State, 134 Tex. 293, 135 S.W. (2d) 687; County of 

Dallas v. McCombs, 135 Tex. 272, 140 S.W. (2d) 1109. 
Honorable Geo. W. Cox, M.D., Page 4 O-4224 

We have no doubt of the urgent necessity for enlarged and permanent 

quarters to house the growing and important functions of the Bureau of Vital Statistics, but we are of the opinion that it will 

require an express appropriation of A sum certain by the Legislature for such specific purpose, either out of the moneys in the 

special "Vital Statistics Fund" or out of the general fund before 

any money may be withdrawn from the State Treasury for the purpose 

of construing the building about which you inquire. 

APPROVED DEC. 2, 1941 

GROVER SELLERS 

FIRST ASSISTANT 

ATTORNEY GENERAL 

Yours very truly 

ATTORNEY GENERAL OF TMAS 

WRK:lm:ml 

BY Walter R. Koch 

Assistant