October 8, 1951

Executive Director Board for Texas State Hospitals and Special Schools Austin, Texas OpinionNo. V-1305

Re: Authority of the Board for Texas State Hospitals and Special Schools to transfer funds between appropriated line Items or between appropriations of the various institutions inArticle II of House Bill 426, Acts 52nd Dear Sir: Legislature.

Your request for an opinion concerns certain riders In Article II of House Bill 426, Acts 52ndLeg. R.S. 1951, ch. 499, p. 1228 (thegeneral appropriationbill), pertaining to the appropriation for the Board for Texas State Hospitals and Special Schools and the State Hospitals and Special Schools under the jurisdictionof the Board. You state that the questions arise by virtue of the holding of this office in OpinionV-1254 (1951)with regard to the constitutionalityof the riders placing additional duties
upon the LegislativeBudget Board. You then ask:

“1. Whether the Board for Texas State Hospltak and Special Schools may add or substitute position titles in accordancewith Section 2,Article 2, H.B. 426.

“2. Whether the Board for Texas State Hospitals and Special Schools may transfer between line items of an institutionand the central office appropriationsor between institutions including the central office appropriationsas provided in Section 7, Article 2, H.B. 426.

“3. Whether the Board for Texas State Hospitals and Special Schools may expend for renovation or new constructionof warehouse facilitiesHon. Larry 0. Cox, Page 2 (V-1305)

as provided in subsection (c) of Section 10, Article 2, H.B. 426."

You subsequentlyrequested the opinion of this officewith regard to the authority of the Board to use the annual $600,000 appropriationto the Board's Special Reserve Account setup in Section 9(a) of Article II, House Bill 426,m, for purchase of food, clothing dry goods, etc., get Board. without approval of the Legislative BudThis particular appropriationwas made to

cover unforeseen emergencies and needs which could not be cared for by speciflc,appropriatlonsto the various institutionsbecause of the inability of the Legislature to predict how many persons may become mentally ill or contract tuberculosis or other illnesses requiring their admission to State Schools and Hospitals. Neither could the Legislature forsee how much the cost of food, clothing F,etc., might rise above the amounts appropriateddiret to each institution.

The rider (Sec.2 of Art, II, House Bill 426, Eitwhich gives rise to your first questionprovides

:

"No institutions shall employ any person at any title not contained in the list of titles of positionsunder the heading of Medical Treatment and Patient Care Division for each institutionprovided in this Article, unless

or until there has been prior approvalby the Legislative Budget Board to add or substitute position titleswith rates of pay within the following maximum salary scales appropriate to the class of position herein set forth,11 (Therefollows a list of position titles and the salariesto be paid the personshaving the titles set out.)

Your second question involves Section 7(a) of Article II, House Bill 426,m, which provides:

"Transfer of Appropriations: (a) No funds may be transferredbetween line items of

an institution and Central OfficeAppropriation

or between institutions including the Central Office appropriationsas provided in this Article,without priorwritten approval of the LegislativeBudget Board. All requests for said -.

-.Hon. Larry 0. Cox, Page 3 (V-1305)

transfers submitted to the LegislativeBudget Board must have the priorwritten approval of the Board and/or Council. Requests for all said transfersmust be submitted to the LegislativeBudget Board in writing with complete and adequate justification,,together with all pertinent supportingdata pertalning to the necessity for such transfer, including a certified copy of the minute or minutes approving said request for transferby the Board and/or Council. Upon approval of transfer requests made by the Board and/or Council, the LegislativeBudget Board shall certify same in writing to the State Comptroller of PublicAccountswho Is hereby directed to make transfer of the fund, or funds, from either or all of the aforesaid accounts, in whole or in part, from one line item to anotherwithin the appropriationsof any or all institutionsand Central Office, or from one institution to another Including the Central Office, In the amount or amounts and for the purpose or purposes as set out in the certification of approval by the LegislativeBudget Board. The State Comptroller shall set up a separate account for the purpose of each transfer."

Section 10(c) of Article II, House Bill 426, supra, Involved in your third question,provides:

"CentralWarehouse System: The Board is hereby authorized to establish a central warehouse system of not to exceed threewarehouses to serve all Institutionsunder the jurisdictionof the Board. In order to facilitate such a warehouse system, there is hereby appropriated out of the Board Local Fund the sum of Two Hundred Thousand Dollars ($200,- 000), to be known as the WarehouseRevolving Fund, to purchase stocks of goods, supplies, materials and equipment to be distributed to the said institutions Included In this Article,

on a reimbursablebasis. Any funds collected by the CentralWarehouse System from sales is hereby reappropriated to the WarehouseRevolvfng Fund for future purchases and operations.Hon. Larry 0. Cox, Page 4 (V-1305)

Chargesmade to institutions for suchmerchandise furnished shall include overhead charges sufficientto meet the cost of operation of saidwarehouse system. Provided, however, that the Board of Control shall continue to handle purchases for the Board in the samemanner as is done for other State agencies. All stocks of goods, supplies,materials and equipmentbelonglng to any institution in excess of a three (3)month normal usage requirementare hereby transferred to the Central Warehouse System without cash or credit reimbursement. All stocks of goods, supplies,materials and equipmentrequired for a three (3)months normal usage may be transferred to the warehouse system at a value set by the Executive Director. The Board is hereby authorized to utilize any available buildings owned by the State that may be suitable forwarehouse purposes; however,no expenditure from any source shallbe made for renovation ornew construction of warehouse facilitieswithout obtaining priorwritten approval of the Legislative Budget Board.”

Section 9(a) ofArticle II, House Bill 426, m, which is Involved in the questionyou asked subsequentto the opinion request consideredherein,provides:

lfSec. 9. (a) There is hereby appropriated out of any moneys In the StateTreasury not otherwise appropriated the sum of Six HundredThousand Dollars ($600,000)for the fiscal year beginning September 1, 1951, and endingAugust.31, 1952, and a like amount of Six Hundred Thousand Dollars ($600,000)is hereby appropriated for the fiscal year beginning September 1, 1952 and endingAugust 31, 1953, to be setup anA known as the Board SpecialReserveAccount to be made avail- ;:bleto meet unforeseen emergencieswhich may arise during the biennium coveredby this appropriation for Hospitals and Special Schools. Any balance remaining in said reserve account

as ofAugust 31, 1952, is hereby appropriated to said account and made available for the fiscal year beginning September 1, 1952. SaidHon. Larry 0. Cox, Page 5 (V-1305)

Board Special ReserveAccount shall be expended only for purchase of food clothing and dry goods medicines, and ut lity ser1 vice, only ader approval of transfer to the institution,or institutions,where said funds are to be expended; except that in the event an institution is activated at Brady, Texas, moneys from the Reserve Account may ‘beused for the operation, including salaries, of said institution.

“All transfers from said account shall require priorwritten approval by the Legislative Budget Board, in the samemanner and by the procedure as provided in (a) of Section 7.”

It will be noted that in each of the above riders, in addition to the approval or action of the Board for Texas State Hospitals and Special Schools, the approval by the LegislativeBudget Board is also required prior to the expenditure or transfer of the funds appropriated or the change in the titles listed in otherparts of the appropriationbill. In Attorney General’s Opinion V-1254 (1951), it was stated that

“Since the State departments, institutions of higher education,and other State institutionsare not a part of the legislative branch of the State government, these riders, in requiring further itemization of appropriationsor approval of the expenditure of appropriated funds by the Legislative Budget Board, violate the constitutionalprovision prescribingthe separation of powers.

N

. . 0
“Therefore, in so far as the powers and duties of the LegislativeBudget Board are extended in House Bill 426 beyond the duties prescribed for that Board in the statuteby which it was created,the Legislature has attempted to place upon the Board dutieswhich

are in violation of Section 1 ofArticle II of the Texas Constitution.”

The riders involved in your request, except Section 9(a) of Article II, areworded in a negative manner, and the questions arise because of a possible contention that after strikingdown the unconstitutionalportion, the authority conditionallygranted therebywould be expresslyHon. Larry 0. Cox, Page 6 (v-1305)

prohibited. This is an extremely technical construction which is dependent solelyupon the grammatical style in which the Legislature expressed itswillingness for certain functions to be performedby the Board for Texas State Hospitals and Special Schools.

The effect of this constructionwould be that the Legislature intended for the Board and the hospitals and schoolsunder the jurisdiction. of the Board to oper- 'iatestrictlyunder the line appropriationsduring the biennium unless the operationwas exactly as provided in the various riders. The rationale of such a position would have to be that the transfer and other provisions

were unnecessary to the operation of the systemunless they could be carried out by the LegislativeBudget Board.

In State v. Carter 27 P.2d 617 (Okla. Sup. 1933)) the Court had before it an appropriationbill in which it was provided that the funds appropriated to the Corporation Commissionwere to be expended-"byand with the approval of the Governoron The Court held that the approval provisionwas an attempt to place general legislation in an appropriationbill and, therefore,unconstitutional. It was contended that if the limitationwas void the entire appropriationmust fall. In overruling this contention,the Court said:

II We are dealingwith a general appropiiit;onbill. None of the decisions cited applies to such a bill. If the rule stated is applicable to the provisions of the general appropriationbill, its application is dependentupon a construction of the legislative Intent. In determiningthat question, the rule is stated in 59Corpus Juris, S 206, pages 642, 646, to be I* * * If,when the invalidpart is strickenout, that which remains is complete in itself and capable of being executed in accordancewith apparent legislative intent wholly independent of that which was rejec 4ed, it must be sustainedto that extent; and this rule is especiallyapplicablewhere the statuteprovides for two distinct subjects. In this connection it has frequentlybeen declared that the valid part of a statutewill be sustainedwhere the valid and invalidparts are
so separateand distinct that it is clear or may be presumed that the legislaturewould have enacted the formerwithout the latter, if it had known of the invalidity, or, as otherwise stated, if the valid or.invalidparts are -Hon. Larry 0. Cox, Page 7 (V-1305)

not so intimately connected as to raise the presumption that the legislaturewould not have enacted the one without the other, the act will be upheld so far as valid. On the other hand, the whole statutewill be declared invalidwhere the constitutionaland unconstitutionalprovisions

are so connected and interdependent in subject matter, meaning, and purpose as to preclude the presumption that the legislaturewould have passed the one without the other, but, on the contrary, justifythe conclusion that the legislature intended them as a whole and would not have enacted

a part only. In otherwords, thewhole act will be declared invalidwhere the unconstitutional part Is so connectedwith the remainder or with the general scheme, that it cannot be stricken out without making the legislative intent ineffective, or is of such import that without it, the other parts would cause results not contemplated

or desiredby the legislature,or is the consideration and Inducement of the whole act, although it has also been held that the rule of lndlvisibilitywhere the invalidpart is the inducement

or considerationof the whole act does not apply if the lnvalldprovisions,although appearing in the same chapter of the revised laws,were enacted in previousyears. In determining the question whether the act would have been passedwithout the invalidpart, the rule has been laid down, that, If the mere elision of thewords or provisionswhich give an unconstitutionaleffect,will leave a consistentand workable act, the remainder will be valid; but if modificationsor limitationsmust be inserted or understood to avoid the fatallybroad effect of the statutory language, thewhole act must fail. l * *I

"As to the item in question,when measured by that rule, we find that the lelislonof the words or provisionswhich give an unconstitutional effect,will leave a consistentand workable act.' that Is,will leave an appropriation singular,definite,landcertain. That which will remain, ‘is complete in Itself and capable of being executed In accordancewith the apparent legislative intent.' The valid and invalid parts are so separate and distinct that It is clear, or may be presumed, that the Legislature would have enacted the formerwithout the latter, if it had known of the invalidity of theHon. Larry 0. Cox, Page 8 (V-13@)

latter. We cannot hold otherwisewithout holding that the Legislaturewould not have made an appropriation **for** the purpose of enabling the CorporationCommission to perform a.duty enjoinedupon It by the Constitution, if it had known that it couldnot require the amount appropriated to be expended 'byand with the approval of the Governor.' We cannot 80 hold. We must give to the Legislature every presumptionof an intention to conform its actions to the provisions of the Constitution. We do so in this case. We thereforehold that, had the Legislature known of the invalidityof its attempt in a general appropriationbill to vest the Governorwith power that he did not theretoforehave, it would have made the appropriation for the performanceof the constitutionalduty of~the Corporation Commission notwithstanding. The Legislature made the appropriation. Evidently It was intended to be used. There Is nothing in the act to indicateany other intention. The fact that the Legislatureattempted to vest approval of its use in the Governor in no wise operates.

to show that **the** Legislature did not intend for the amount to be used.

. 0 s We cannot conclude that the Legislature intended that, if those legislativeprovisionswere void, the appropriationsmade in a general appropriationbill would fail. We refuse to so hold. To do so would be to hold that the Legislaturedid not intend to make appropriations for the conduct of the government of this state, unless its attempt to legislate in a general appropriationbill, in violation of the plain and unambiguousprovisions of the Constitution,was lawful."

Texas Courts have applied these same rules of construction in cases Involving statuteswhich are unconstitutional in part. Ohio Oil Co. v. Giles, 235 S.W.2d 650 (Tex.Sup. 1951);Western Union Tel. Co. v. Texas, 62 Tex. 630 (1884).

Under theserules, all of Articles II of House Bill 426 must be considered in determining if the authority contained in the quoted riderswould have been included In the Article without the proviso requiring approval by the LegislativeBudget Board,. A technical constructionwhich would remove a word or phrase from aHon. Larry 0. Cox, Page 9 

### (V-1305)

sentenceand attempt to apply literallywhat remains would be prohibited.

The primary intent of the Legislature in passing the various provisions inArticle II, as shownby thewording of those provisions,was to setup a method whereby transfers of funds and other changes couldbe made in order for the State Hospitals and Special ,Schools to be efficientlyand economically operated. The procedure adoptedwas to place the initiatingpower in the Board for State Hospitals and Special Schools, and then have their action approved by the LegislativeBudget Board. We think it is clearly evident that the power to carry out these provisionswould have been placed solely in the Board for State Hospitals and Special Schools had the Legislature known the Budget Board requirementwas unconstitutional. The number of riders contained in the “GeneralProvlsionsV’ portion ofArticle IIwhich grant to the Board for Texas State Hospitals and SpecialSd’mols authority to make changes in the line appropriations set out in Section 1 shows that the Legislaturewas cognizant of the fact that the specificappropriationsmust be supplemented and changed to some extent. In the final analysis, it appears that itwould be virtually impossible for the Board to carry out its functionswithout the authority contained in the above quoted riders and the other riders contained in Article II. The Legislature surely did not intend the Texas State Hospitals and Special Schools to cease operations should the functions of the Legislative Budget Board set out in Article II be unconstitutional.

The primary intent discussed above is clearly indicated in the rider (Sec.9(a) ofArt. II, House Bill 426) which provides for the transfer from the Board’s Special ZeserveAccount. The transferringauthority is contained in affirmative language in the first paragraph, whereas in a subsequentparagraph the transfers are conditioned upon prior written approval by the Legislative Budget Board. Should this secondparagraph be deleted as unconstitutionalthe affirmative authority to transfer the funds remains unconditioned. Therefore the Board clearly has the authority to transfer the Pun&s provided for in Section 9(a) of Article II.

In urd P Aa i ul u
. State AdmuITative B*i l& N.W. l:O (de;. “,uit?924), the supervisory contra of the agricultural collegewas, by theHon. Larry 0. Cox, Page 10 (V-1305)

appropriationbill, placed in the StateAdministrative Board instead of the State Board ofAgriculturewhich previously had supervisedthe college. The Court held that the provision in the appropriationbill transferring the supervisionof the collegewas invalid and the contentionwas made that the invalidity of the provisionnullified the entire appropriation. In overruling this contention,the Court stated:

,I

. This being true the question arises, Does the unconstitutionalprovision of the statutenullify the whole act? To hold that it doe.s, we must assume that the Legislaturewould not have made the appropriation except for the fact that the moneywas to be expendedunder the general supervisory control of the stateadministrativeboard. The main purpose of the Legislaturewas to grant an appropriationto the college to enable it to carry on its extensionwork in cooperationwith the Pederal authorities. A previous Legislature had committed the state to that policy. The appropriationwas made to support one of the most Important activities of the college. In making it the Leglslaturewas but obeying the mandate of the Constitutionthat it shouldgrant appropriations for the support of the college and its various activities. of 1908. Section 10, art. 11, Constitution

It had become a fixed habitwith this Legislature to conferupon the adminlstrative board general supervisory control over all appropriations. As has been heretofore pointed out, this appears Prom the various acts enacted at this same session. It is not reasonable to assume, therefore, that it intended the appropriation to fail If for any
reason the state administrativeboard could not exercisea general supervisory control

over its expenditure. As we have indicated, the appropriationwas necassary to carry on the very importantwork of taking the college to the people. Its purpose was mainly to bsnsfit thosewho couldnot reside at the college. The Legislature did not want thiswork to fail; it knew that an appropriationwas necessary if Itwere to be continued. The main purposawas the appropriation. The supervisorycontrolwas but incidental,due to the legislativepolicy.Hon. Larry 0. Cox, Page 11 (V-1305)

In these circumstanceswe think that the Legislature did not intend the appropriation to fail, and that the attempt to conferunconstitutionalauthority on the stateadminlstrative board did not nullify the balance of the act.

. ..'I

The Texas Legislature, in House Bill 426, placrd supervisorycontrol over many appropriations in the Legislative Budget Board. The fact that the supervisorycontrol is unconstitutionaldoes not have the effect of doing away with the affirmativeactionwhich was conditionedupon the Board's approval. The legislative history of the provisions in question reveal that in the past the administrativebody which had.control of the State Hospitals and Special Schools

was always given the power to take the a'ctionsin question without the approval of a Legislative Budget Board. This is revealed in the followingparagraph from your request:

"Inasmuchas previous legislatureshave nearly always provided for changes and substitutions of amounts appropriated to the State Board of Control and the Board forTexas State Hospitals, it is the interpretationof this department that the Legislature intended that the Board forTexas State Hospitals and Special Schools shouldhave the authority to add or substituteposition titles in accordancewith Section 2 and to tran~sfer appropriations in accordancewith Section 7 of, the appropriation bill. Prior to 1949 the State Board of Control was in charge of the eleemosynary institutions, and we have checked the riders to the appropriationbills back to 1941, andwe find that transfer of appropriationswas allowed by the Legislature to the State Board of Control and to the Hospital Board in one form or another each biennium."

A somewhat similar situationwas involved in Moorq

V. ShenQa 144 Tex. 537, 192 S.W.2d 559 (1946). The rider involved in'that case required the clerks of all courts to de:losit

fees for making unofficial copies In the State treasury and to execute an affidavit that such deposit had been made, and provided that

II

. . .,The Comptroller shallnot issue a warrant in payment of the salary of any suchHon. Larry 0. Cox, Page 12 07-1305)

employee for any month unless and until the affidavit requiredherein has been filed for said previous month.*

Holding the rider invalid, the Court said:

'Therebeing no statutoryduty requiring petitioners to furnish uncertified,unofficial copies of opinions of the Courts of civilAppeals, no statutePixing any fee for such services,and no Valid statute requiring that money received therefor be deposited in the StateTreasury there is no debt owing by petitioners to <he State. Since petitioners are not required to account to the State Treasurer, under the existing statutes,for suchreceipts, they cannot be required to execute an affidavit that such funds have been deposited in the State Treasury as a condition for the delivery of their monthly salary warrants."

Thus, under similar circumstances,the Texas Supreme Court has held the appropriationto be effective, although the attached riderwas negative in form and the conditionwas held invalid.

It is our opinion,therefore that the Board for Texas State Hospitals and Special &ohools has the authority to perform the functions set out in your questions. Under the holding in Attorney General's Opinion V-1254 (19511, the approval of the LegislativeBudget Board is not required.

The Board for Texas State Hospitals and Special Schoolshas authority to add or substituteposition titlesunder Sec. 2 ofArt. II of H.B. 426, Acts 52nd Leg., R.S. 1951, ch. 499, pe 1228. The Board may transfer appropriations between line items of the lnstitutions under its control or between institutions and the central office as provided in Sec. 7(a) of Art. II of H.B. 426,m, and expend appropriatedfunds for renovation or
new constructionof warehouse facilities as provided in Sec. 10(c) ofArt. II of H.B. 426, -* -,Hon. Larry 0. Cox, Page 13 (V-1305)

The Board also has the authority to make the use and transfer of funds appropriated to the Board's SpecialReserve Account as provided in Section o(a) of Article II of House Bill 426, m, for food, clothing, dry goods, medicine, etc., to meet unforeseen emergencies in State schoolsand hospitals.

The unconstitutionalityof the requirement of LegislativeBudget Board approval prior to exercise of the above functions by the State Board for Hospitals and Special Schools does not render the entire functions and appropriations invalid.

Yours very truly,

PRICE DANIEL Attorney General

APPROVED:

C. x. Richards Trial & Appellate Division

Everett Hutchinson ExecutiveAssistant

Charles D. Mathews First Assistant Assistants

EJ:EWT:wb