April, 10, 1950

Hon. John Ben Shepperd Secretary ofState Austin, Texas



### Dear Mr. Shepperd: Opinion No. V-1043,. Re: The validity of S.B. No. 35, Acts 51s.t Legislature, 1st Called Session, 1950, making an appropriation from the Securities Act Fund to defray expenses ofpublishing the laws of said called session, Yourequest the opinion ofthis office 

### as to the

### validity ofSenate Bill No. 35passed by the First Called Session of the Slet Legislature, which is as follows:

“AN ACT making an emergency appropriation for the use ofthe Secretary ofState for the purpose of publishing the Current Laws; and declaring an emorgency.

“BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 

### “Section 1. There is hereby appropriated for the use ofthe Secretary ofState, out **of any**  funds in the Securities Act Fund not heretofore otherwise appropriated, the sum ofTwo Thousand ($2,000.00) Dollars tobe expended for the purpose ofcompiling, editing, indexing, and distributing the Current Laws enacted by the 51st Legislature,

“Sec. 2. The fact that the appropriation6 heretofore made to the Secretary ofState 

### for the purposes named in Section 1of this Act are inadequate, creates an emergency and an imperative public necessity that the Constitutional Rule requiring bills tobe read 

### on three several days in each House be suspended; and the same is hereby suspended, and this Act shall take effect and be in full force and effect **from** and after its passage, and it is 60enacted,” Under the authority ofGulf Insurance Co. v. James, 143Tex. 424, 185S,W.Zd 966 (1945). we hold that this **Act** is valid and the appropriated funds 

### maybeusedfor thepurpose specifiedHon. John Ben Shepperd, Page 2(v-1043)

in the Act. The **Court** said:

“We agree with the holding ofthe **Court** ofCivil Appeals that the Legislature has the right to transfer the balance on hand in these special funds to the General Revenue Fund. In so doing the Legislature does not violate the provisions ofArticle VIII, Section 7, of the Constitution, Vernon’s Ann. St., which provides that,

‘The Legislature shall not have power to borrow, or in any manner divert from its purpose, any special fund that may, or ought to, come into the Treasury; * * *.’ In the case ofBrazes River Conservation &Reclamation District v. McGraw, 126Tex. 506,, 91S.W.2d 665, this Court held that the above-quoted constitutionalirihibition applies only to special funds created by the Constitution, and not to special funds created **by** statute. The special funds here under consideration 

### were created **by statute,**  and not by the Constitution.
u

... The State could have required the funds collected for the purposes indicated tobe paid directly to the General Revenue Fund in the first instance. Ex Parte Gregory, 20 Tex. App. 210, 219, 54Am. Rep. 516; Brown v. City ofGalveston, 97Tex. 1, 17, 75S.W. 488. Ii it had done so, then certainly the excess, ifany,’ would have been available 

### for use for general purposes. The pfopriety and fairness ofan enactment authorizing the use ofthe unexpended balances in these special funds for general purposes present legislative rather than **ju** dicial considerations.” You are, therefore, advised that it is our opinion that Senate Bill No. 35makes avalid appropriation and that the funds therein appropriated may be used **for** the purpose specified in the Act. SUMMARY

The Legislature may make an appiopriation from statutory special funds in the same manner and to the same extent as it may make appropriation from the General Fund. Gulf Insurance Co. v. James, 143Tex. 424, 185S.W.Zd Qbb(1945)

. . Very truly **yours,** APPROVED: W. V. Geppert Taxation Division Charles D. Mathews Executive Assistant LPL/mwb PRICE DANIEL Attorney General 

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