THEA~~ORNEY GENEHAL 

OFTEXAS 

Honorable Wm. Calvin Montgomery 

Chairman, House Investigating Committee 

Under H. S. R. No. 168 

House of Representati.ves 

Austin, Texas 

Dear Sir: Opinion No. O-5149 

Re: Does the Speaker of House of Representatives have legal authority under H. S. R. 

No. 8 to pay from the Legislative Contingent Expense Fund the compensation for 

additional clerks for the School Census 

Division of the Department of Education? 

We acknowledge receipt of your opini,on requ,est dated March 22, 

1943, which reads as follows: 

“As chairman of the Hoxse Investigating Committee assigned to examine and investigate the school Census Division 

of the Department of Educati,on, especial!y with reference to 

money spent out of the Contingent Fund of the Legi,slature for 

employment. of cl,erks in the School Census Division of the Department of Education, I am directed to request of you an opi.nion as to whether clerks assi,gned to the School Census in the 

Department of Education can be lawfully pal,d out of the Contingent Fund of the House ? 

‘“Senate Bill No. 1 of the Forty-Eighth Legislatwe makes 

the following appropriation for contingent expenses of the Legislature: 

“‘An Act making an appropriation of the sum of Three Hundred and Fifty Thousand Doll.ars ($350,000.00), or so much 

thereof as may be necessary, out of any funds i.n the State Treasury not otherwise appropriated, to pay the contingent expenses, 

and to pay the mi,leage and per diem of members and the per diem 

of officers and employees of the Regular Sessi,on of the Fortyeighth Legislature, and to pay any unpaid accounts or expenses 
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Honorable Wm. Calvin Montgomery, Page 2, O-5149 

of the Forty-seventh Legislature; and declaring an emergency.’ 

“House Simple Resolution No. 8 provides for the appointment 

of certain employees of the House of Representatives, and provides further 

that the Speaker shall have the power to appoint extra employees whenever 

in his judgment they are needed, and that each shall perform such duties as 

the Speaker may require. 

“For several years it has been .the custom of the ~Legislature 

to employ committee clerks and place them on the House of Representatives pay roll for the purpose of working in the School Census Division of 

the Department of Education. They are carried on the pay roll of the House 

of Representatives and are paid out of the Contingent Fund of the Legislature, 

but their employment is for the purpose of checking the school census under 

the direction and supervision of employees for the Department of Education 

in accordance with the Act providing for the checking and approving of the 

annual school census by the Department of Education. 

*Our committee has been appointed by a House resolution for the 

purpose of determining whether this constitutes a proper expenditure from 

the Contingent Fund of the Forty-eighth Legislature, as well as other matters concerning the nature and necessity of the work performed by these 

clerks. 

“Question: Do we have the legal authority to pay money out of the 

Contingent Fund created by an Act of the Legislature, Senate Bill No. 1, for 

the purpose of paying mileage, per diem, and contingent expenses of the 

Legislature, for the employment of additional salaried help to work in the 

Department of Education and perform services under the provisions of the 

Act of the Legislature creating the School Census Division of the Department 

of Education and providing for the annual checking and approving of the 

school census ?” 

That portion of House Simple Resolution No. 8 referred to in your 

letter reads as follows: 

“BE IT FURTHER RESOLVED, That it shall be the duty of 

the Speaker, and he is hereby empowered, to dispense with the 

services of any employee who, in his judgment, is not further 

needed, or for misconduct of any employee; and he shall have 

the power to appoint extra employees whenever in his judgment 

it is needed. The duties of the employees heretofore mentioned 
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Honorable Wm. Calvin Montgomery, Page 3, O-5149 

shall be such as are required by the Speaker of the House of 

Representatives, and he is hereby empowered to employ parttime employees, and to di.vide the duties, apportion the hours, 

and fix the pay of such part-time employees, within his discretion. 

“Any of the employees may be excused by the Speaker for 

causes deemed by him suff,icient; provided fu,rther, that any 

employee who shall absent himself without leave shall not receive any compensation for the time missed during his absence. 

The salaries of the employees shall begin when they are instructed to begin work by the Speaker.” 

The Appropriation Bill for the Executive and Administrative Departments of the State Government passed by the Forty-seventh Legislature 

contains an appropriation of $24,420.00 for the School Census Division of 

the Department of Education for the present fiscal.year ending August 31, 

1943. General and Special Laws, Acts of 47th Legislature, page 1151. 

Following this appropriation and as a part of the Act is Section 

(15) b of the General Provisions, which reads in part as follows: 

,~;;:Th,&appropriations herein provided are to be construed 

as the maximum sums to be appropriated to and for the several purposes named herein, and the amounts are intended to 

cover, and shall cover the entire cost of the respective items 

and the;sane shall not be supplemented from any other sources; 

and, except as otherwise provided, no other expenditures shall 

be made, nor shall any other obligations be incurred by any department of this State . . . .” General and Special Laws, Acts 

47th Legislature, page 1292. 

This provision against supplementing the appropriations is broad 

enough, in our opinion, to prohibit the Legislature as one of the departments 

of this State from supplementing an appropriation by the indirect means of 

paying the salaries of additional employees who work for one of the other 

departments for whom an appropriation has been made, when there has been 

no bill passed authorizing an additional appropriation for the particular department. 

We do not think that House Simple Resolution No. 8 was passed for 

the purpose of repealing Section (15)b of the General Provisions of the Departmental Appropriation Bill of the 47th Legislature. However, if such was the 
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Honorable Wm. Calvin Montgomery, Page 4, O-5149 

purpose, it is our opinion that the attempted repeal was ineffective. 

It is the settled rule in this State that a statute cannot be amended 

by a resolution. In Caples V. Cole, 129 Tex. 370, 102 S. W. (2d) 173, rehearing denied 129 Tex. 370, 104 S. W. (2d) 3, Mr. Justice Sharp speaking for the 

Supreme Court said: 

“It is plain that the resolution not only undertakes to interpret or construe ,what the original act contained but also to read 

into said law words and intentions not expressed in the original 

act. Statutes cannot be amended in that manner. Resolutions play 

‘their part in our legislative history, and are often resorted to for 

the purpose of expressing the will of the Legislature, but statutes 

cannot be amended by resolutions.” 102 S. W. (2d) 176. 

In Humble Oil & Refining Co. v. State, 104 S. W. (2d) 174, error refused, the Austin Court of Civil Appeals said: 

“A statute cannot be amended by a resolution. It must be 

amended by re-enactment and publication at length, and by an 

act or bill which is subject to the veto power of the Governor. 

Article 3, Sections 29, 30, 35 and 36 of the Constitution of Texas.” 

104 S. W. (2d) 185. 

The custom of the Legislature in employing clerks to work for and 

under the supervision of the School Census Division of the Department of Education and in paying them out of the Legislative Contingent Expense Fund by 

putting them on the pay roll of the House of Representatives is also objectional 

on constitutional grounds. 

In our opinion No. O-4609 we have heretofore ruled that so much of 

House Bill No. 284, General and Special Laws of the 47th Legislature, page 880, 

which undertakes to give administrative powers to a “Joint Legislative Advisory 

Committee” created by the act,,was unconstitutional. In that opinion we said: 

“It is the function of the legislative branch of the government 

to make the laws; it is the function of the executive branch of the 

government to administer and execute those laws. In the statute 

under consideration, the Legislature of the State of Texas has undertaken not only to declare what the law shall be, which is clearly its 
Honorable Wm. Calvin Montgomery, Page 5, O-5149 

prerogative, but has also undertaken to clothe a portion of the 

membership of the Legislature, the Joint Legislative Advisory 

Committee, with the authority to execute and administer the 

law passed by the Legislature. Under Article 2, Section 1, of 

the Constitution of the State of Texas, the Legislature is powerless to clothe itself, or a portion of its members, with executive 

aut,hority. * 

We are of the opinion that the speaker of the House of Representatives would have no greater power in this connection than an investigating 

committee appointed by him. The constitutional power of the Legislature to 

appoint investigating committees and pay their expenses and their compensation (when they are not members of the Legislature or other State officials) 

in order to get information requisite to the right use of the legislative power 

is implied from the powers expressly granted. Terrell, Commissioner v. 

King, 118 Tex. 237, 14 S. W. (2d) 786. This implied power, however, is limited by the constitutional provision which prohibits the Legislative Department from exercising any power properly attached to the Executive or Judicial Departments. Art. II, Sec. 1, Texas Constitution; People v. Tremaine 

(New York), 168 N. E. 822; Langever v. Miller, 124 Tex. 80, 76 S. W. (2) 

1035. In the last case cited, the late Chief Justice Cureton speaking for the 

Supreme Court said: 

“Under this division of governmental power it is now an established and fundamentll principle of constitutional law that the executive cannot exercise either judicial or legislative authority; the judicial department cannot be clothed with executive or legislative power; 

and the legislative ‘magistracy’ cannot exercise the functions of either the Executive or the Judiciai Departments. 12 Corpus Juris, 

p. 802, § 234 et seq. Corpus Juris, supra, declares: ‘The separation 

of the powers was believed by Montesquieu, by Blackstone, and by 

American Constitution makers of the eighteenth century to be one of 

the chief and most admirable characteristics of the English Constitution. ’ 

‘A principle which is the very foundation of the government of 

the United States and of the several states must be deemed one essential to the preservation of the rights and liberties of the people, 

and should be thoughtfully and faithfully observed by all clothed with 

the powers of government.” 
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Honorable Wm. Calvin Montgomery, Page 6, O-5149 

Under the facts stated in your opinion request, we are of the 

view that the employment of the clerks mentioned is an administrative 

or executive duty imposed on the State Superintendent of Public Instruction, under Article 2820, Vernon’s Annotated Civil Statutes and not a legislative function. The 47th Legislature adopted this view by the appropriation 

of $24,480.00 for the biennium for salaries of Clerks, Directors and Supervisors in the Census Division of the Department of Education and $24,360.00 

for maintenance and miscellaneous expenses of the Census Division. (S. B. 

No. 423, General and Special Laws, 47th Legislature, p. 1151) and by an additional emergency appropriation of $6,000.00 to the Census Division in which 

it provided that ‘all moneys used in the checking of the census shall be paid 

out on an hourly basis; and provided that such compensation received for 

said hourly basis shall not exceed forty (40) cents per hour.” H. B. No. 392, 

General & Special Laws, 47th Legislature, p. 469. 

We, therefore, respectfully answer your inquiry in the ~negative on 

each of the grounds stated. 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

By $p% 

FD:BT 

ATTORNEY GENERAL OF TEXAS 

Fagan Dickson 

Assistant 

APPROVED 

OPINION 

COMMITTEE 

BY&%‘%? 

Chairman