## THEA~~ORNEY GENEHAL OFTEXAS

Honorable Wm. Calvin Montgomery Chairman, House Investigating Committee Under H. S. R. No. 168 House ofRepresentati.ves Austin, Texas
Dear Sir: Opinion No. O-5149 Re: Does the Speaker ofHouse ofRepresentatives have legal authority under H. S. R. No. 8topay from the Legislative Contingent Expense Fund the compensation for additional clerks for the School Census Division ofthe Department ofEducation?
We acknowledge receipt ofyour opini,on requ,est dated March 22, 1943, which reads as follows:

“As chairman ofthe 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 ofthe Contingent Fund ofthe Legi,slature for employment. ofcl,erks inthe School Census Division ofthe Department ofEducation, Iam directed to request ofyou an opi.nion as towhether clerks assi,gned to the School Census inthe Department ofEducation can be lawfully pal,d out ofthe Contingent Fund ofthe House ?

‘“Senate Bill No. 1ofthe Forty-Eighth Legislatwe makes the following appropriation for contingent expenses ofthe Legislature:

“‘An Act making an appropriation ofthe sum ofThree Hundred and Fifty Thousand Doll.ars ($350,000.00), or so much thereof as may be necessary, out of any funds i.nthe 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 ofthe Regular Sessi,on ofthe Fortyeighth Legislature, and to pay any unpaid accounts or expenses-.

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of the Forty-seventh Legislature; and declaring an emergency.’
“House Simple Resolution No. 8provides for the appointment of certain employees ofthe House ofRepresentatives, 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 ofthe ~Legislature to employ committee clerks and place them on the House ofRepresentatives pay roll for the purpose ofworking in the School Census Division of the Department ofEducation. They are carried on the pay roll ofthe House ofRepresentatives and are paid out ofthe Contingent Fund ofthe Legislature, but their employment is for the purpose of checking the school census under the direction and supervision ofemployees for the Department of Education inaccordance with the Act providing for the checking and approving ofthe annual school census by the Department ofEducation.

*Our committee has been appointed by aHouse resolution for the purpose of determining whether this constitutes aproper expenditure from the Contingent Fund ofthe Forty-eighth Legislature, as well as other matters concerning the nature and necessity ofthe work performed by these clerks. “Question: Do we have the legal authority to pay money out ofthe Contingent Fund created by anAct ofthe Legislature, Senate Bill No. 1, for the purpose ofpaying mileage, per diem, and contingent expenses ofthe Legislature, for the employment ofadditional salaried help towork inthe Department ofEducation and perform services under the provisions ofthe Act of the Legislature creating the School Census Division ofthe Department of Education and providing for the annual checking and approving ofthe school census ?”

That portion ofHouse Simple Resolution No. 8referred to inyour 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 ofany employee who, inhis judgment, is not further needed, or for misconduct ofany employee; and he shall have the power to appoint extra employees whenever inhis judgment it is needed. The duties ofthe employees heretofore mentionedI -

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shall be such as are required by the Speaker ofthe 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 ofthe 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 ofthe employees shall begin when they are instructed to begin work by the Speaker.”
The Appropriation Bill for the Executive and Administrative Departments ofthe 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 of47th Legislature, page 1151.

Following this appropriation and as apart ofthe Act is Section (15) b ofthe General Provisions, which reads inpart 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 ofthe 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 ofthis 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 ofthe departments of this State from supplementing an appropriation by the indirect means of paying the salaries ofadditional employees who work for one ofthe 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 donot think that House Simple Resolution No. 8was passed for the purpose of repealing Section (15)b ofthe General Provisions ofthe Departmental Appropriation Bill ofthe 47th Legislature. However, if such was the- L

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

It is the settled rule inthis State that astatute cannot be amended by aresolution. InCaples 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 inthe original act. Statutes cannot be amended inthat manner. Resolutions play

‘their part in our legislative history, and are often resorted to for the purpose ofexpressing the will ofthe Legislature, but statutes cannot be amended by resolutions.” 102 S. W. (2d) 176.
InHumble Oil &Refining Co. v. State, 104 S. W. (2d) 174, error refused, the Austin Court ofCivil Appeals said:

“A statute cannot be amended by a resolution. Itmust be amended by re-enactment and publication at length, and by an act or bill which is subject to the veto power ofthe Governor. Article 3, Sections 29, 30, 35 and 36 ofthe Constitution of Texas.” 104 S. W. (2d) 185. The custom ofthe Legislature inemploying clerks towork for and under the supervision of the School Census Division of the Department of Education and inpaying them out ofthe Legislative Contingent Expense Fund by putting them onthe pay roll ofthe House ofRepresentatives is also objectional on constitutional grounds.

Inour opinion No. O-4609 we have heretofore ruled that so much of House Bill No. 284, General and Special Laws ofthe 47th Legislature, page 880, which undertakes to give administrative powers to a “Joint Legislative Advisory Committee” created by the act,,was unconstitutional. Inthat opinion we said:

“It is the function of the legislative branch ofthe government to make the laws; it is the function of the executive branch ofthe government to administer and execute those laws. Inthe statute under consideration, the Legislature ofthe State of Texas has undertaken not only to declare what the law shall be, which is clearly itsHonorable Wm. Calvin Montgomery, Page 5, O-5149

prerogative, but has also undertaken to clothe aportion ofthe membership ofthe 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 ofthe State ofTexas, the Legislature is powerless to clothe itself, or aportion of its members, with executive aut,hority. *
We are ofthe opinion that the speaker ofthe House ofRepresentatives would have no greater power inthis connection than an investigating committee appointed by him. The constitutional power ofthe Legislature to appoint investigating committees and pay their expenses and their compensation (when they are not members ofthe Legislature or other State officials) in order to get information requisite to the right use ofthe 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), 168N. E. 822; Langever v. Miller, 124 Tex. 80, 76 S. W. (2) 1035. Inthe last case cited, the late Chief Justice Cureton speaking for the Supreme Court said:

“Under this division ofgovernmental 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 ofeither the Executive or the Judiciai Departments. 12Corpus 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 ofthe eighteenth century to be one of the chief and most admirable characteristics ofthe English Constitution. ’

‘A principle which is the very foundation ofthe government of the United States and ofthe several states must be deemed one essential to the preservation ofthe rights and liberties ofthe people, and should be thoughtfully and faithfully observed by all clothed with the powers of government.”-- b

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Under the facts stated inyour opinion request, we are of the view that the employment ofthe clerks mentioned is an administrative or executive duty imposed on the State Superintendent ofPublic Instruction, under Article 2820, Vernon’s Annotated Civil Statutes and not alegislative function. The 47th Legislature adopted this view by the appropriation of $24,480.00 for the biennium for salaries ofClerks, Directors and Supervisors inthe Census Division ofthe Department ofEducation and $24,360.00 for maintenance and miscellaneous expenses ofthe 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 inwhich it provided that ‘all moneys used inthe checking ofthe 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 ofthe 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