.

. *

The HonorableLane Denton

Chairman Opinion No. H-822 Committeeon Social Services House of Representatives P. 0. Box 2910 Austin, Texas 70767 Re: Effect of Governor's determination that Texas Youth Council appropriation contingency has been partiallymet or substantiallymet. Dear RepresentativeDenton: For the Committee on Social Services you have asked severalquestions regarding a rider to the 1976-1977 qeqerai' appropriationsact provision for the Texas Youth Council and the effect of certain actions of the Governor',relatinqto it. The provision, in pertinentpart, and thqrider reed:
TEXAS YOUTH COUNCIL CENTRAL OFFICE
For the Years Ending

August 31, August 31, 1976 1977

. . . . 6. Community Services: **‘ i** 

. . . .
c. Alternate Care 4,OUQ,UQO 5,QQQ,QOQ

. . . .

p.3468The Honorable Lane Denton - page 2 (H-822)

Pursua;:tto theprovisions of Article 689a-4b,Vernon's Civil Statutes, the appropriations for each fiscalyear under Item 6c, alternate care, aremade contingent upon a finding by the Governor that the following fact exists for each fiscalyear: 1. That the Texas youth Council has developed and adopted a plan for allocation of the appropriation for community assistance which takes into consideration full utilization of existing facilities in a given area prior to the allocation of funds for new facilities in that same area. The appropriations for each fiscalyear under item 6c are hereby appropriated **for** the establishmentof halfway houses for the care and treatment of children under the custody of the Texas Youth Council, to be expended on salaries in addition to those specifically I listed in the Schedule of Classified Positions, other expenses and all other activities for which no other provisions,are.made. The funds may be expended also forpurchasing services, includingappropriatehousing,meals, psychiatric, casework and counseling services from existing public or private agencies. Acts 1975, 64th Leg., ch. **743** at 2417, 2503, et seq. On September 29, 1975, subsequent to the effective date **of** the above general appropriationsact provisions, the Governor advised the Comptroller of his determination that 'the specified fact has been partiallymet" and that he was "authorizingtheYouth Council to utilize $l,OQO,OQO for the alternate care program." On February 12, 1976, the Governor furtheradvised the Comptroller of his determination that "the specified fact has been sufficientlymet to authorize theyouth Council to utilize an additional $l,OOQ,QQQ in the 1976 fircalyear **for** the alternate care program."

p.3469The Honorable Lane Denton - page 3 W-822)

The Comptroller,we are advised,has funded the appropriation item only to the extent of the $2,OOQ,OQQauthorized by the Governor. Because some of your questions aremade moot by our answers, it is necessary that we respond to only three of your questions. your first question is:

IsArt. 669a-4b constitutionalor doea it attempt to confer upon the Governor powers denied him underArt. IV, 6 14 of the Constitutionof the State of Texas? Article 689a-4b, V.T.C.S., provides:

Section 1. The Governor of the State of Texas is authorized to find any fact specified by the Legislature in any appropriationbill aa a contingency enabling expenditureof 

### any designated item **of** appropriation.
, Sec. 

### 2. (a)The Governor shall base his finding on the eviden'ce as it exists at the time of his determination:provided.the Leqislaturemay by condition in an appropriation bill require such determination to be made followinga public hearing. (b) The decision of the Governor, together with his findingsof fact, shall be filedwith the Comptroller of PublicAccounts and the Legislative Budget Board. (c)The Governor's decision shall be final, subject to review in the courts by mandamus or other,

appropriate legal remedies. (d)His certificate, under the seal of his office, statinghis decision, shall be evidence of hie decision. The constitutionalityand effect of article 609a-lbwar considered in Attorney General Opinion H-207 (1974). There 

### we said:

p.3470The Honorable Lane Denton - page 4 (H-822)

Insofar <.sthe :.tilCi& will authorize an appropriation to be made to hinge upon the determinationby the Governor of the existence of a fact, and not upon any exercise of his discretion,we think it valid

. . . .

. . . [Glenerally,an appropriationmay be made subject to a determinationby the Governor, or another administrative officer, that an event has occurred or a fact exists.
In this~

case, the 1976 fiscal year appropriation item for theTexas Youth Councilhas been conditioned upon the existenceof a fact, i.e., the development and adoption by the Texasyouth Council o-plan for allocation of the appropriation for community assistancewhich takes into consideration full utilizationof existing facilities in a given area prior to the allocation of funds for new facilities in ' that same area. The Governor has been delegated the responsibility for determiningwhether such a plan has been developed and adopted, not the reeponebility for shaping the plan or for approving it. The latter authority cannot be given him by an appropriationact rider alone. Attorney General Opinion X-268 (1974). See also Attorney General Letter AdvisoryNo. 2 (1973).--
The next queetion is: If the rider does call for a finding of fact, can the Governor determine that the 'fact'partially exists and thereby authorize only a partial expenditure of funds? Or does the contingency contained in the rider apply to the entire appropriation so that~either all or none is released, depending on the Governor’s finding7 .

p.3471.*

The Honorable Lane Denton - page 5 (H-822)

The Legislaturedelegated to the Governor the power to determinewhether or not a particular fact exists. It has not given him thepower to determinewhether the appropriated funds shouldbe released inwhole or in part. Article 699a-4b permits the Governor to find a fact specifiedby the Leqislature "as a contingency enabling expenditure of any designated itemof appropriation.! (Emphasisadded). A definition of that termwas given in Commonwealthv, Dodson, 11 S.E.Zd 120 (Va. 1940) and was quoted with approvalbye Texas Supreme Court in Jessen Associates, Inc. v. Bullock, 531 S.W.Zd 593, 599 (Tex.Gup.1975). The C= iiidxcatedthat "[a]n item in an appropriationbill is an indivisible sum of money dedicated to a statedpurpose." See also Fulmore v. Lane, 140 S.W. 405 (Tex.Sup. 1911). Inthiscase, Eemof appropriation is an indivisible sum of $4,QQO,OOO. If the fact is found to exist, thewhole amount appropriated for 1976 is then available to the Texas Youth Council; if it is found not to exist, none of the appropriated funds for 1976 are available to it. Both the rider and the Governor's letters to the Camptroller speak of the appropriationbeing contingent upon a finding that a particular, singular fact exists. The Governor has been given no power to find a fact relative to only a portion of the item or to authorize the release of a part of the appropriated funds upon finding the existence 

### of a different 

### fact. The next question is: If the Governormust release all or none of the appropriation,doea the finding that the contingency has been partially met or substantiallymet enable the TYC to utilize the entire $4million for FY 

### 767 When an act of a public officer is capable of two meanings, one#withinhis authority and one without, the act should be construed to be lawful. Beard v. Marshall, 32 S.W.Zd 496 (Tex.Civ. App. -- Eastland9m, no writ). See 23 Tex. Jur.Zd Evidence S 82 at 123 et seq. Xere the ho=- nor ham 

### advisedthe*Comptrolleron stationarybearing his

p.3472.

.

The Honorablebane Denton - page 6 (H-822)

seal that 'the specified fatt has been sufficientlymet to authorize the Youth Council to utilize an additional $l,OOO,OOQ in the 1976 fiscalyear for the alternate care program." The letter to the Comptroller can be considered the Governor's certificateof his decision on the matter. See Attorney General Opinion H-573 (1975). -
It is impossible to ascertainwith complete certainty whether the Governor's certificationwas intended to indicate that the specified facthad been sufficie~ntly met within the meaning 

### of the riderprovision or sufficientlymet within his personal contemplation to justify no more than a further one million dollar expenditure. The rider gives the Governor only the option 

### of releasing all of the funds 

### or none of them. Since the Governor is presumed to have acted within his authority, the fact findingwhich he characterized as being sufficient topermit the release of $l,OOQ,OOOprobably would be 

### conotruedby the courts to permit the release 

### endutilizatfon of theentireappropriation item. SUMMARY 4
Where an appropriation item for the Texas Youth Council has been made contingent upon a determinationby the Governor that a single, specified fact exists, the Governor's formalwritten advice to the Comptroller that the specified fact has been sufficientlymet so as to authorize the agency to utilize a part 

### of the appropriated fundsprobablywould be construedby the courts as a certificate that the conditionhasp been satisfied so as tomake available to the agency the entire amount appropriated. -Very truly yours,

Attorney General of Texas

.

p.3473 

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TheHonorableLaneDenton-page 7 (H-822)

APPROVED:

Opinioncpmmittee jwb

p. 

### 3474