October 20,1970

Hon. J. W. Edgar Commissioner Texas Education Agency 201E. 11th Street Austin, Texas

Dear Dr. Edgar: Opinion No. M- 709 Re: Whether the Legislature has appropriated funds to establish andmaintain regional diagnostic facilities as authorized by Section 11.15 of the Texas Education Code, as amended, andrelated questions. You have requested anopinion concerning the above stated matter. Wequote from your letter:

"Section 

### 5of House Bill 

### 156(Code provision 11.15), as amended byH.B. 432, 61st Leg., directs that the Commissioner of Education shall transmit to the 62nd Legislature an Interim report on the status of the research on the problem of diagnosin and treating language-handicapped children, and (27 include in the report an itemized estimate of the moneyrequired to conclude research project satlsfactorily by August 

### 31,1972. In implementation of this research program contemplated by the Act, especially Section 11.15(h), subsections (2) and 

### (3)of Texas Education Code, which call for the establishment and operation of at least three regional experimental diagnostic facillties,~and subsection (4) which authorizes the making of agreements toward the establishment thereof, wecurrently are confronted with a two-fold problem. "First8 Is there anappropriation to support the cost of establishment and operation of such regional facilities? "Second8 Maysubsection (4) of Section 11.15(h) T.E.C., be construed to empower the Texas Education Agency to contract with private firms, clinics or other acceptable associations for the performance of such experimental diagnostic treatment and program services, pursuant to Agency adopted regulations and/or guidelines?
-3426-Hon. J. **W.** Edgar, page 2 (M-709)

“The Office of State Comptroller has apprised this Agency orally that in the absence of anAttorney General ruling It could not honor requests of this Agency for warrants In payment of costs for the establishment and operation of such regional experimental diagnostic facilities, because there is nolanguage in House Bill No. 

### 156,as amended, or any other statute, which provides that such research program shall constitute apart of andbe financed from the Foundation School Program or its Fund; and secondly, because there is noestimate or specified amount appropriated to the Texas Education Agency from the General Revenue Fund for such {eglonal and experimental diagnostic facilities purposes, The gist of the first question appears to be whether there is a specific appropriatlon.and prior authorization bythe Legislature to pay the cost of the establishment and operation of the regional facilities mentioned in your request.

Section 44 of Article III, Texas Constitution, requires pre-existing law as abase for aspecific appropriation. Austin National Bankv. Sheppard, 123‘f&.272, 

### 71S.W.2d 242 (19341.

Section 6of ArtlcleVIII, Texas Constitution, requires that a.specific appropriation be madebefore money is drawn from the treasury. The definition of “specific” as set forth in Section 

### 6was interpreted by the Texas Supreme Court In National Biscuit Companyv. State, 

### 134Tex.293, 135S.W.2d 

### 687(1940)r (page 6931

“It is sufficient if the Legislature authorizes the expenditure by law, and spec;fles the purpose for which the appropriation Is made. In the instant case, House Bill No. 2, Aats 61st Leglslature, 2ndCalled Session, 1969, p. 890 (last appropriations act) provides:

“There is hereby appropriated for the biennium ending August 

### 31,1971

. . . to pay‘the State’s part of the Foundation School Program as provided for in

. . House Bill No. 

### 156,Chapter 451,

. Acts of the 60th Legislature, Regular Session, 19671

. . .

“There Is hereby specifically appropriated out of moneys in the Qeneral Revenue Fundnot otherwise appropriated the amount necessary to pay the full amounts contemplated and provided by Senate Bill
-3427-Hon. J. W.Edgar, page 

### 3~ (M-709)

No. 117

. should there be Insufficient money in the fund lreated bv said Senate Bill No. 117 to carry out the purposes and provisionsof Sedate Bill No. 117

. House Bill No. 

### 156

. .

The appiopriatlon above shall be ex-. v - .” pen ed under the.terms and provisions of said Senate Bill No. 117, supra, and the respective laws hereinabove cited respectively. House Bill No. 

### 156referred to in the above, Act .was codified ae Article 2654-lc, Vernon’s ,Civil Statutes, and later adopted in the Texas Education Code as Section 11.15. At the same time, as adopted In the Code It was amended byHouse Bill 432, Acts of the 6lst Legisiature, Regular Session, page, 228 (1969). The net effect of this legislation is that House Bill 

### 156,as referred to In the above quoted sections of the Appropriation Act, is very muchalive, and in our opinion serves as existing lawupon which aspecific appropriation wasmadeby the Legislature In the last Appropriation Act.

Your second question also requires anaffirmative answer. The authority and obligations of Section 11.15(h) ,of the Texas Education Code was not affected byHouse Bill 432, supra, and said Section authorizes andrequires the. Central Education Agency to establish aminimumnumber of experimental diagnostic facilities with advice from the advisory council. This same section of ~theCode, and also pertinent provisions of House Bill 432, specifically provide that the agency shall makenecessary agreements and contacts to establish the diagnostic facilities, and further authority Is given to seek assistance of both public and private concerns to develop aprogram for such facllltles~ SUMMARY

Prior law exists upon which aspecific appropriation wasmadeto pay the cost of establlshlng and operating regional experimental diagnostic clinics as contemplated by the “Barnes-Wright Study Act”, Article 2654-lc, Vernon’s Civil Statutes. Specific authority is given by Section 11.15(h) of the Texas Education Code for the Central Education Agency to contract with private firms to set upand operate the experimental diagnostic programs pursuant to Central Education Agency guidelines. -342a-Hon. J. W.Edgar, page 4 **(M-709)**

DC. MARTIN Prepared byJames C. McCoy Assistant Attorney General APPROVED: OPINIONCOMMITTEE Kerns Taylor, Chairman W.E. Allen, Co-Chairman Ivan Williams Jerry Roberts Fisher Tyler Roger Tyler MEADE F. GRIFFIN Staff Legal Assistant ALFmDWALKER Executive Assistant NOLAWHITE First Assistant

**-3429-**