. 

. * 

The Honorable Lane Denton 

Chairman 

Opinion No. H-822 

Committee on 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 

partially met or substantially met. 

Dear Representative Denton: 

For the Committee on Social Services you have asked 

several questions regarding a rider to the 1976-1977 qeqerai' 

appropriations act provision for the Texas Youth Council and 

the effect of certain actions of the Governor',relatinq to 

it. The provision, in pertinent part, 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. 3468 
The Honorable Lane Denton - page 2 (H-822) 

Pursua;:t to the provisions of Article 

689a-4b, Vernon's Civil Statutes, the 

appropriations for each fiscal year under 

Item 6c, alternate care, are made contingent 

upon a finding by the Governor that the 

following fact exists for each fiscal year: 

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 fiscal year 

under item 6c are hereby appropriated for the 

establishment of 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 for purchasing services, 

including appropriate housing, 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 appropriations act provisions, the 

Governor advised the Comptroller of his determination that 

'the specified fact has been partially met" and that he was 

"authorizing the Youth Council to utilize $l,OQO,OQO for the 

alternate care program." On February 12, 1976, the Governor 

further advised the Comptroller of his determination that 

"the specified fact has been sufficiently met to authorize 

the youth Council to utilize an additional $l,OOQ,QQQ in the 

1976 fircal year for the alternate care program." 

p. 3469 
The 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,OQQ authorized 

by the Governor. 

Because some of your questions are made moot by our 

answers, it is necessary that we respond to only three of 

your questions. your first question is: 

Is Art. 669a-4b constitutional or doea it 

attempt to confer upon the Governor powers 

denied him under Art. IV, 6 14 of the Constitution of 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 appropriation bill aa 

a contingency enabling expenditure of 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 Leqislature may by condition in an appropriation 

bill require such determination to be made 

following a public hearing. 

(b) The decision of the Governor, together 

with his findings of fact, shall be filed with 

the Comptroller of Public Accounts 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, stating his decision, shall be evidence 

of hie decision. 

The constitutionality and effect of article 609a-lb war 

considered in Attorney General Opinion H-207 (1974). There 

we said: 

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

Insofar <.s the :.tilCi& will authorize 

an appropriation to be made to hinge 

upon the determination by the Governor 

of the existence of a fact, and not upon 

any exercise of his discretion, we think 

it valid . . . . 

. . . [Glenerally, an appropriation may be 

made subject to a determination by 

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 the Texas Youth Council has been conditioned upon the 

existence of a fact, i.e., the development and adoption by the 

Texas youth Council o-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 Governor has been delegated the responsibility for determining whether 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 appropriation act rider alone. Attorney General 

Opinion X-268 (1974). See also Attorney General Letter 

Advisory No. 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 Legislature delegated to the Governor the power to 

determine whether or not a particular fact exists. It has 

not given him the power to determine whether the appropriated 

funds should be released in whole or in part. Article 699a-4b 

permits the Governor to find a fact specified by the Leqislature "as a contingency enabling expenditure of any designated 

item of appropriation.! (Emphasis added). A definition of 

that term was given in Commonwealth v, 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= iiidxcated that "[a]n item 

in an appropriation bill is an indivisible sum of money 

dedicated to a stated purpose." 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, the whole 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 appropriation being 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 Governor must release all or none 

of the appropriation, doea the finding 

that the contingency has been partially 

met or substantially met enable the TYC 

to utilize the entire $4 million for FY 

767 

When an act of a public officer is capable of two 

meanings, one #within his 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 advised the*Comptroller on stationary bearing his 

p. 3472 
. 

. 

The Honorable bane Denton - page 6 (H-822) 

seal that 'the specified fat t has been sufficiently met to 

authorize the Youth Council to utilize an additional $l,OOO,OOQ 

in the 1976 fiscal year for the alternate care program." 

The letter to the Comptroller can be considered the Governor's 

certificate of his decision on the matter. See Attorney 

General Opinion H-573 (1975). 

- 

It is impossible to ascertain with complete certainty 

whether the Governor's certification was intended to indicate 

that the specified fact had been sufficie~ntly met within the 

meaning of the rider provision or sufficiently met 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 finding which he characterized as being 

sufficient to permit the release of $l,OOQ,OOO probably would 

be conotrued by the courts to permit the release end utilizatfon 

of the entire appropriation item. 

SUMMARY 4 

Where an appropriation item for the Texas 

Youth Council has been made contingent 

upon a determination by the Governor that 

a single, specified fact exists, the Governor's formal written advice to the 

Comptroller that the specified fact has 

been sufficiently met so as to authorize 

the agency to utilize a part of the 

appropriated funds probably would be 

construed by the courts as a certificate 

that the condition hasp been satisfied 

so as to make available to the agency 

the entire amount appropriated. 

-Very truly yours, 

Attorney General of Texas 

. 

p. 3473 

I-- 
. w w 

The Honorable Lane Denton - page 7 (H-822) 

APPROVED: 

Opinion cpmmittee 

jwb 

p. 3474