Honorable

Executive - - Charles Barden

Secretary Control Board Texas Air 820East 53rd Street Austin, Texas 78751

Dear Mr. Barden: March 28,1972
Opinion No.M-1105
Re: State Air Control Board canpay court costs per Article 4477-5 in civil penalty suits.

You have asked our opinion as follows:

"Attached hereto is a copy of abill from the Sheriff of Tyler County, Texas, in connection with the service of the ~papersin Cause No. 8805 -The State of Texas v. Stephens Lumber Company, Inc., which has been filed in the 88thDistrict Court of Tyler County, Texas. wI am respectfully requesting an opinion as towhether our office canpay abill 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 isby the State of Texas, filed pursuant to Section 4.02 ofArticle 4477-5,Vernon's Civil Statutes, by the Attorney General at the request of theboard 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, 104Tex. 499, 140S.W. 405, 411, 412 (1911). The Court there observed that theAppropriations Act and the veto must be construed by an application of the same rules as govern statutes or other legislative acts. Unless theAir Control Board has an appropriation out ofwhich court costsmay be paid, there are no funds available fromwhich court costs may be paid.

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Honorable Charles Barden, page 2 (M-1105)

ation'oumay pay court costs out of Item 7,'ofyour appropriwhich reads as follows:
"AIR CONTROL BOARD II

... "7
. Other Operating Expenses 75,000." The only items other than Item 7 inyour 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 hapsbeen broadly construed. St. Louis Union Trust Co. v. Texas Southern Ry. Co., 126 S.W. 296, (Tex. Civ.App. 1910, error ref.); 29Words and Phrases, "Operating Expenses", page 210, et seq. The phrase has been held to be interchangeable with "cost of operation". Appeal of Pitney, 20N.J. Misc. 448, 28A.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, 144P.2d 617, 621 (1944). See also 21A.L.R. 981, et seq., ,theannotation styled "Particularity of specification ofp~urposerequired in appropriation bill". "Other Operating Expenses", in this context, implies that all necessary andproper expenses other than for those set out in the line items arepayable 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 ofArticle 4477-5, Vernon's Civil Statutes, a part of the Texas Clean AirAct which established theTexas Air Control Board, provides that theboard "...may cause legalproceedings to be instituted in courts of competent jurisdiction to compel compliance with the provisions of thisAct 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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regulations, orders, variances or other decisions of theboard". Thus, the enforcement proceedings may be initiated by the Board, and ithas a joint responsibility with theAttorney General, as its legal representative inCourt, to cause litigation expenses and court costs tobe incurred. The action isbrought by the State of Texas, andwhether court costs have orhave not been appropriated to theAttorney 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 ofTexas. The court cost item of appropriation to theAttorney General's office isnot necessarily the exclusive item of appropriation towhich the State may look to pay such costs under the circumstances presented here. Express declarations of the Legislature firstmad,ein its present language in the general Appropriation Act at its RegularSession 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 ONUSE OF OTHER EXPENSE FUNDS FOR PAYING SALARIES AND WAGES. Funds appropriated inArticles I, IL and III of thisAct, or for the Central Education Agency inArticle IV of thisAct, 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 theComptroller's Manual ofAccounts. Expenditure Classification, effective November 1, 1965, as amended, andnumbered 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 ofAccounts was emphasized by the Legislature; the subsequent emphasis by us)
.

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The language of the 1965Act was in substance the same. Pursuant to this express Legislative directive, the Comptroller has issued his Manual ofAccounts. Relevant to the issues under consideraticn is theprovision atpage number 4-25 (Revised 9-l-69) of thatManual 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 asmortuary 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 thisprovision 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, 359S.W.2d 62 (Tex.Civ.App. 1962, aff.- 367S.W.2d 322); A. E.Frank Co. v. Latham, 190 S.W.2d 739 (Tex.Civ.App. 1945, aff. 145Tex. 30, 193 S.M.2d 671); 53Tex. 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:ciationto be the exclusive item for this purpose. See Cec'llon10,Article V, Current General Appropriation Act, and Cz~ptroller'sManual ofAccounts, p. 4-25, set out above. In addition, court costs are sometimes expressly itemized in appropriations to administrative agencies. The Comptroller ofAccounts and theTexas
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Highway Department have such an item which isand has been used many times in thepast for this purpose in addition to such an item appropriated for the general operation of theAttorney General's office. (Seethe current General Appropriation Act, pages III-39 and 111-77). There are other instances, in thepast and currently, of which we are aware, whe~nstate agencies have drawn upon their own general appropriation for operating expenses topay court costs incurred in connection with suits filed for them and at their request by theAttorney General. See also, for example, theTexas Employment Commission. Art. 522133-11and 522133-12, Subd. (b)and (h). Under Article 4477-5, andparticularly Sections 4.02 and 4.04 thereof, your Board is authorized to request theAttorney General to file and prosecute civil penalty suits for airpollution violations. Court costs incident to these suits are necessary incidents to this operation ofyour Board. No particular form ofwords are necessarv to create a specific anpropriation of funds topay these operating expenses. In - National Biscuit Co. v. State, 134Tex. 293, 135S.W.Zd 687, 693 (1940), the court held:

II
...Section 6 ofArticle 8of our Constitution requires all appropriations ofmoney out of the State Treasury tobe specific. It is settled that no particular form ofwords is required to render an anprouriation specific within themeaning of the constitutional provision under discussion. It is sufficient if the Legislature authorizes the expenditure by law,_and suecifies the nurnose forwhich the appropriation ismade..'." (Emphasis added) The appropriations tomany 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 atpages 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. -5391-. .

Honorable Charles Barden, page 6 (M-1105)

our courtswhich hold this type of appropriation violates the requirement ofArticle VIII, Section 6 of the Texas Constitutionwhich requires that:

"NOmoney shall be drawn from the Treasury.but inpursuance of specific appropriations made by law;
..." (Emphasis added).
InTerre11 v. Sparks, 104Tex. 191, 135S.W. 519 (1911),the grouping of many items into one lump sum appropriation for a department was upheld asvalid andnot obnoxious to the constitutional objection that itwas not a specific appropriation. The Courts give weight to construction of the constitution by the Legislature. 12Tex.Jur.Zd 366, Const. Law., Sec. 20. Prior Opinions of theAttorney General Nos. V-554 (1948) andM-286 (1968)are expressly overruled; anyprior 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 inbehalf of the State can be paid from the "Other Operating Expenses" fund as payment for anecessary incident to the operation of the Board. SU -- Thewords "Other tained in Item 7MMARY ----- Operating Expenses" conof the current General Appropriation Act to the Texas Air Control Board for the fiscal year 1972 includes court costs in civilpenalty suits filed by theAttorney General at the request of the Board. Any prior opinions in conflict with this opinion, including V-554 (1948) andM-286 (1968),a$e overruled.

Prepared by Roger Tyler Assistant Attorney General -5392-Honorable Charles Barden, page 7 (M-1105)

APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman W. E.Allen, Co-Chairman Robert Owen Houghton Brownlee RexWhite James Broadhurst SAMUEL D.MCDANIEL Staff Legal Assistant
ALFRED WALKER Executive Assistant
NOLA WHITE First Assistant

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