HonorableGso

. if.Cox, M.D.

State Health Officer Austin, Texas

Dear Sir: OpinionNo. O-4224 Re: Whether the balance in Vital Statistics Fund may be devoted to the constructionof 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 ofVital Statisticswhich makes necessary enlarged facilities for carrying on the work of the Bureau and storing its records.

After setting out the applicableprovisions of the current approRriation 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, togetherwith any additions thereto deposited during the biennium beginning September 1, 1941, can be used inconstructing a building for offices and working space for the employees and. personnel of the Bureau ofVita Statistics, and a fire proof vault for the protectionand 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: 'TheBoard of Control shall provide suitable offices for the Bureau of Vital Statistics in the State Capitol or in other suitablebuildings 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

"SenateBill 423, Regular Session, 47th Legislature, Sections ti0to 97, dppropriatedvarious sums for salaries for employees of the Bureau of Vital Statistics,and in addition thereto appropriated certain fees as follows: 'Subjectto the limitations appearing at the end of thisAct 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 prescribedby the Above Act, and any amenbents thereto, including salaries,maintenance, travel and contingent expense. This appropriation shallbe in addition to the itemized appropriationherein 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 ofVital 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,.andall such fees shall be kept by the State Treasurer in a specialand separate fund to be known as the "Vital StatisticsFund", and the amount so deposited in this fund may be used for defraying expenses incurred in the enforcementand operation of this Act.'

"For your informationmay we point our tha~t the Bureau of Vital Statisticshas no.inspectors or fieldworkers who administer
or enforce the Vital StatisticsLaw in anvmanner whatsoever. The entire enforcement and operation of thisAct is carried on through the office personnel and the enforcementand operation consists of properly checking records, filing saine, and seeing that these records are preserved, their chiefproblem of enforcementbeing the storing of these records in places where they are not subject to firehazards, 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 collectionsof fees as averaged for the ty:relve months endingAugust 21, 1941, are $1,912.00per month. The expenditure of the above balance and a portion of the monthly income from fees would not reduce the efficiencyof the Bureau of Vital Statistics."

The answer to your question turns upon this point:whether the proviso in the appropriationbill, "all fees received under the provisions of Article 4477, Rule 54a, Andy deposited to the Vital StatixticsFund sre hereby appropriated...forthe uses and :?urposes prescribedby the above Act, and any amendments thereto, including salaries,naintenance, tr;;vel and contingentexpense"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 subsequentadditions thereto, to the construction of a building for use of theHonorable 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 clearlymay not be so construed. As saidby the Austin Court of CivilAppeals in State v. 163 S.W. 1020, (writof error refused) at page 1022: Haldeman,

"

...The Legislaturemight authorize commissionersto contract for the erection of a public building of such a characterand at such cost as to themmight seembest, but'such a proceeding would, to say the least of it, be unwise, and such has not been the usual,coursewith reference to public buildings in Texas. It is well known that it is the customwith Legislatures to appoint committeesto investigatethe needs of public institutions,to hear evidence and visit and inspect such institutions,and to pass appropriationbills 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 LunaticAsylum, any additional sum expended thereon was unauthorized, and was not supportedby 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 buildingsabove the amount originally appropriated. The court refused to recognizeany authority, implied or otherwise, in the Board of Directors to authorize any enlargementof the buildings as authorized by the Legislature. Said the court:

"We do not think by the passage of the appropriationbill above referred to, wherein the specificamount 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 liabilityon the part of the state for more than this amount n

......
To the same effect is the holding inNichols v. State, 32 S.X. 452. See also Ft. Worth Calvary Club v. Sheppard, $3 S.W. (2d) 660.

ArticleVIII, Section 6, of the Constitutionof Texas, provides: "Nomoney shall be drawn from the Treasury but in pursuance of specificappropriationsmade by law...f1';le do not believe that the languageof the appropriation to the Bureau of Vital Statistics, which reads:",.-for the uses and purposes prescribedby the above Act

...includingsalaries,maintenance, travel 2nd contigent expense"
canbe construed as a "specific appropriation" for the construction of a public building as that term is used inArticle 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 enlargedand permanent quarters to house the growing and importantfunctionsof the Bureau of Vital Statistics,but we are of the opinion that it will require an express appropriation of A sum certainby the Legislature for such specificpurpose, either out of themoneys in the special "Vital StatisticsFund" or out of the general fund before any money may be withdrawn from the State Treasury for the purpose of construingthe building about which you inquire.

APPROVEDDEC. 2, 1941 GROVER SELLERS FIRST ASSISTANT ATTORNEY GENERAL Yours very truly

ATTORNEYGENERALOF TMAS

WRK:lm:ml BY WalterR. Koch Assistant