Honorable 

Executive - - 

Charles Barden 

Secretary 

Texas Air Control Board 

820 East 53rd Street 

Austin, Texas 78751 

Dear Mr. Barden: 

March 28, 1972 

Opinion No. M-1105 

Re: State Air Control Board 

can pay court costs per 

Article 4477-5 in civil 

penalty suits. 

You have asked our opinion as follows: 

"Attached hereto is a copy of a bill 

from the Sheriff of Tyler County, Texas, 

in connection with the service of the 

~papers in Cause No. 8805 - The State of 

Texas v. Stephens Lumber Company, Inc., 

which has been filed in the 88th District 

Court of Tyler County, Texas. 

wI am respectfully requesting an 

opinion as to whether our office can pay 

a bill related to court costs or litigation on view of the fact that such expenditures are not specifically authorized in our appropriation bill." 

The above suit is by the State of Texas, filed pursuant 

to Section 4.02 of Article 4477-5, Vernon's Civil Statutes, 

by the Attorney General at the request of the board and its 

Executive Secretary. The court cost appropriation of the 

Attorney General's office for the current year was vetoed 

by the Governor, exercising his "legislative function". 

Fulmore v. Lane, 104 Tex. 499, 140 S.W. 405, 411, 412 (1911). 

The Court there observed that the Appropriations Act and the 

veto must be construed by an application of the same rules 

as govern statutes or other legislative acts. 

Unless the Air Control Board has an appropriation out 

of which court costs may be paid, there are no funds available from which court costs may be paid. 

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, 1 

Honorable Charles Barden, page 2 (M-1105) 

ation' 

ou may pay court costs out of Item 7,'of your appropriwhich reads as follows: 

"AIR CONTROL BOARD 

II . . . 

" 7 . Other Operating Expenses 75,000." 

The only items other than Item 7 in your appropriation 

are line items for salaries and travel. The broad language 

in Item 7, quoted above, indicates that all of the other authorized expenses of operating the Texas Air Control Board must 

be paid from Item 7. The phrase "operating expenses" of a 

court appointed receiver haps been broadly construed. St. Louis 

Union Trust Co. v. Texas Southern Ry. Co., 126 S.W. 296, (Tex. 

Civ.App. 1910, error ref.); 29 Words and Phrases, "Operating 

Expenses", page 210, et seq. The phrase has been held to be 

interchangeable with "cost of operation". Appeal of Pitney, 

20 N.J. Misc. 448, 28 A.2d 660 (1942). The phrase "Operating 

Expenses" has been held to include administration, labor, 

taxes, rent, insurance, claims and litigation expenses or 

court costs. Powell v. City and County of San Francisco, 62 

Cal.App.2d 291, 144 P.2d 617, 621 (1944). See also 21 A.L.R. 

981, et seq., ,the annotation styled "Particularity of specification of p~urpose required in appropriation bill". 

"Other Operating Expenses", in this context, implies that 

all necessary and proper expenses other than for those set out 

in the line items are payable from this line item. Where suit 

is authorized by law, the necessary implication is that the 

costs of the suit may be paid, as an expense necessary and incident to the operation of the agency. 

Section 3.07 of Article 4477-5, Vernon's Civil Statutes, a 

part of the Texas Clean Air Act which established the Texas Air 

Control Board, provides that the board "...may cause legal proceedings to be instituted in courts of competent jurisdiction 

to compel compliance with the provisions of this Act or the rules 

'The current General Appropriation Act, Acts 62nd Leg., 

R.S., 1971, S.B. 11, as amended by Acts 62nd Leg., 1st 

C.S., 1971, S.B. 7, p. 111-11, 3510. 

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Honorable Charles Barden, page 3 (M-1105) 

regulations, orders, variances or other decisions of the board". 

Thus, the enforcement proceedings may be initiated by the Board, 

and it has a joint responsibility with the Attorney General, as 

its legal representative in Court, to cause litigation expenses 

and court costs to be incurred. The action is brought by the 

State of Texas, and whether court costs have or have not been 

appropriated to the Attorney General's office is immaterial under 

circumstances where the administrative agency has an appropriation which may be used to cover these expenses incurred upon 

behalf of the State of Texas. The court cost item of appropriation to the Attorney General's office is not necessarily the 

exclusive item of appropriation to which the State may look to 

pay such costs under the circumstances presented here. 

Express declarations of the Legislature first mad,e in its 

present language in the general Appropriation Act at its Regular Session in 1965 and repeated at each session since confirm 

our holdings above. Each of the general Appropriation Acts 

since 1965, including the interim act for the period September 

1, 1969, through October 31, 1969, have contained the following provision: 

"Sec. 10. LIMITATIONS ON USE OF OTHER 

EXPENSE FUNDS FOR PAYING SALARIES AND WAGES. 

Funds appropriated in Articles I, IL and III 

of this Act, or for the Central Education 

Agency in Article IV of this Act, in items 

designated for consumable supplies and materials, current and recurring operating 

expense or capital outlay shall be expended 

only for items set out in the Comptroller's 

Manual of Accounts. Expenditure Classification, effective November 1, 1965, as 

amended, and numbered from 10 to 19 for 

'consumable supplies and materials’, 20 

through 28 for 'current and recurringopcrating expense', and 60 to 69 for 'capital 

outlay'. It is further provided that such 

terms shall not include expenditures for 

personal services including salaries and 

wages, unless the language of those items 

explicitly authorizes such use." (The 

term Manual of Accounts was emphasized by 

the Legislature; the subsequent emphasis by 

us) . 

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Honorable Charles Barden, page 4 (M-1105) 

The language of the 1965 Act was in substance the same. 

Pursuant to this express Legislative directive, the Comptroller has issued his Manual of Accounts. Relevant to the 

issues under consideraticn is the provision at page number 4-25 

(Revised 9-l-69) of that Manual which, in its relevant part, 

reads: 

"EXPENDITURE CLASSIFICATION 

EXPENDITURE CODE 

028 OTHER OPERATING EXPENSES 

AUTHORITY: Legislative Appropriation 

PURPOSE: To record payment for services 

and fees not listed or included 

under Expenditure Code 20 thru 

27.... These services and fees 

are such items as mortuary service, telephone answering service not billed by the telephone 

company, equipment service contracts, purchase of evidence, 

time-clock service, and like - 

items.... 

II II . . . iEmphasis added). 

Several of the state agencies have expended monies from 

general appropriations to them pursuant to this provision of 

this Manual. The State Auditor has approved those expenditures. 

This interpretation and those approvals ;re reasonable and in 

our opinion are correct. Tarry Moving & Storage Co., Inc. v. 

Railroad Commission, 359 S.W.2d 62 (Tex.Civ.App. 1962, aff.- 

367 S.W.2d 322); A. E. Frank Co. v. Latham, 190 S.W.2d 739 

(Tex.Civ.App. 1945, aff. 145 Tex. 30, 193 S.M.2d 671); 53 Tex. 

Jur.2d 259-263, Statutes, Sec. 177. 

Nor do we find that the Legislature untended the court 

cost item in the Attorney General's approl:ciation to be the 

exclusive item for this purpose. See Cec'llon 10, Article V, 

Current General Appropriation Act, and Cz ~ptroller's Manual 

of Accounts, p. 4-25, set out above. In addition, court costs 

are sometimes expressly itemized in appropriations to administrative agencies. The Comptroller of Accounts and the Texas 

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Honorable Charles Barden, page 5 (M-1105) 

Highway Department have such an item which is and has been used 

many times in the past for this purpose in addition to such an 

item appropriated for the general operation of the Attorney 

General's office. (See the current General Appropriation Act, 

pages III-39 and 111-77). 

There are other instances, in the past and currently, of 

which we are aware, whe~n state agencies have drawn upon their 

own general appropriation for operating expenses to pay court 

costs incurred in connection with suits filed for them and at 

their request by the Attorney General. See also, for example, 

the Texas Employment Commission. Art. 522133-11 and 522133-12, 

Subd. (b) and (h). 

Under Article 4477-5, and particularly Sections 4.02 and 

4.04 thereof, your Board is authorized to request the Attorney 

General to file and prosecute civil penalty suits for air pollution violations. Court costs incident to these suits are 

necessary incidents to this operation of your Board. No particular form of words are necessarv to create a specific anpropriation of funds to pay these operating expenses. In - 

National Biscuit Co. v. State, 134 Tex. 293, 135 S.W.Zd 687, 

693 (1940), the court held: 

II . ..Section 6 of Article 8 of our 

Constitution requires all appropriations 

of money out of the State Treasury to be 

specific. It is settled that no particular 

form of words is required to render an anprouriation specific within the meaning of 

the constitutional provision under discussion. It is sufficient if the Legislature authorizes the expenditure by law, _and 

suecifies the nurnose for which the appropriation is made..'." (Emphasis added) 

The appropriations to many state agencies are stated in 

very general terms. Examples may be found at pages III-101 

through 104 (p. 3600-3603, official bound vol. of session 

laws) and at pages III-137 through 142 (p. III-136 through 

141, 3635-3640, official bound ~012 of session laws) of the 

current General Appropriation Act. We find no decision of 

'The current General Appropriation Act, Acts 62nd 

Leg., R.S. 1971, S.B. 11, as amended by Acts 62nd 

Leg., 1st C.S., 1971, S.B. 7. 

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. . 

Honorable Charles Barden, page 6 (M-1105) 

our courts which hold this type of appropriation violates the 

requirement of Article VIII, Section 6 of the Texas Constitution which requires that: 

"NO money shall be drawn from the Treasury.but in pursuance of specific appropriations made by law; . .." (Emphasis added). 

In Terre11 v. Sparks, 104 Tex. 191, 135 S.W. 519 (1911), the 

grouping of many items into one lump sum appropriation for a 

department was upheld as valid and not obnoxious to the constitutional objection that it was not a specific appropriation. 

The Courts give weight to construction of the constitution by 

the Legislature. 12 Tex.Jur.Zd 366, Const. Law., Sec. 20. 

Prior Opinions of the Attorney General Nos. V-554 (1948) 

and M-286 (1968) are expressly overruled; any prior opinions 

which conflict with this Opinion are overruled to the extent 

of the conflict. 

In view of all of the foregoing considerations, we have 

concluded that litigation and court costs of the Texas Air 

Control Board in filing or defending suits in behalf of the 

State can be paid from the "Other Operating Expenses" fund as 

payment for a necessary incident to the operation of the 

Board. 

-- SU 

The words "Other 

tained in Item 7 

MMARY ----- 

Operating Expenses" conof the current General 

Appropriation Act to the Texas Air Control 

Board for the fiscal year 1972 includes 

court costs in civil penalty suits filed 

by the Attorney General at the request of 

the Board. Any prior opinions in conflict 

with this opinion, including V-554 (1948) 

and M-286 (1968), a$e overruled. 

Prepared by Roger Tyler 

Assistant Attorney General 

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Honorable Charles Barden, page 7 (M-1105) 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

Robert Owen 

Houghton Brownlee 

Rex White 

James Broadhurst 

SAMUEL D. MCDANIEL 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

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