### E AXTOWNEY GENERAL OF TEXAS

August 22, 1972 Honorable Robert S. Calvert Opinion No. M-l 191 Comptroller of Public Accounts State of Texas Re: Constitutionality of Section 19, State Finance Building Article V, Senate Bill No. 11, Austin, Texas 78774 R.S. , 62nd Legislature, 1971 Dear Mr. Calvertz

You have requested our opinion of the constitutionality of Article V, Section 19 ofthe current General Appropriation Bill (Acts, 62nd Leg., R.S. 1971, ch. 1047, p,. 3804. ) That section reads as follows:

“Sec. 19. Cooperation for the General Welfare. The Executive departments andagencies of the State, when requested by the Governor, are authorized to transfer andto use available moneys appropriated in this Act for the purpose of rendering all practical assistance to the Governor or to State Departments and Agencies designated by him inmaking surveys and investigations andtaking necessary action resulting therefrom, inthe public interest; or for such other purposes as will aid the economic growth and general welfare of the State; andfor civil defense anddisaster relief functions as authorized by State law; provided, however, that copies of such requests for transfer andnotice ofthe Governor’s action on such requests, shall be filed with the Legislative Budget Board. ” This section attempts to authorize, upon request of the Governor, transfers of appropriated funds from the agency towhich the appropriation is made to another agency. Inour opinion the section is contrary to the State Constitution andis invalid.

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Honorable Robert S. Calvert, page 2 (M-1191)

There is no authority in the Constitution which authoriees the Executive Department or its state agencies to act for the Legislature by saying what agencies may spendwhatmoney. To the contrary, the Texas Constitution, Article II, Section 1, specifically prohibits the Executive Department from exercising power properly attached tothe Legislative Department. Furthermore, Article VIII, Section 6, Constitution of Texas, prohibits the drawing ofmoney from the Treasury “but inpursuance of specific appropriations made by law, ” and it has been held thatthis provision of the Constitution may notbe ignored or evaded. Pickle v. Finley, 91 Tex. 484, 44 S.W. 480 (1898); Cherokee County v. Odom, 297 S.W. 1055 (Tex. Civ.App. 1927, rev’d on other grnds., 118 Tex. 288, 15 S.W. 538); National Biscuit Co. v. State, 134 Tex. 293, 135 S.W. 2d (1940); 52 Tex. Jur. 2d 747, State of Texas, Sec. 37.

Under the constitution and statutes of Texas, the legislature is the sole judge of the need andpurpose for expending the state’s money; by whom it shall be expended; andthe amount to be expended, subject only to the veto ofthe Governor. The legislature cannot delegate this legislative power to the executive department of government. Texas Constitution, Article II, Section 1. The Governor’s sole power concerning appropriations is the power to veto. This power is limited by time and inmethod of exercise. Texas Constitution, Article IV, Section 14.

Under Section 19 ofthe Appropriation Bill, the legislative powers to determine purposes andamounts of appropriations are transferred to the executive department of government inviolation ofArticle II, Section 1, Texas Constitution. These legislative functions are non-delegable, and the legislature cannot authorize the Executive Department and state agencies, atthe request of the Governor to ‘Ire-appropriate” state funds once before appropriated by it to another agency for other purposes. In effect, unde,r Section 19, the purpose declared by the Legislature inthe Appropr’iation Bill is completely changed, andSection 19 amounts to a blank check to the Executive Department tomake anappropriation or reappropriation. “It is notwhathas been donebutwhat can be doneunder a statute that determines its constitutionality. ” See, State v. State Board ofFinance, 69 N.M. 430 P. 2d 925, 932-933 (1961), ant cases there cited.

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“No law shall be passed, except by bill” (Texas Constitution, Article III, Section 30) and, “No money shall be drawn from the Treasury but inpursuance of specific appropriations made by law” (Texas Constitution, Article VIII, Section 6. ) A power lodged inthe Governor to transfer funds contrary to their appropriated purpose for unspecified purposes and inunspecified amounts is not a specific appropriation. An appropriation by the Governor is not “by bill” andtherefore nota law inand of itself.

Inview ofthe foregoing considerations, we must hold that Section 19 ofArticle V ofthe current General Appropriation Act is invalid andunconstitutional. SUMMARY

Article V, Section 19 of the current General Appropriations Bill is anunconstitutional delegation oflegislative power to the Executive Department of government and is invalid.

Prepared by Kerns Taylor Assistant Attorney General APPROVED: OPINION COMMITTEE W. E. Allen, Acting Chairman Sam Jones J. C. Davis JohnGrace Ralph Rash ey General of Texas

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SAMUEL D. MCDANIEL Staff Legal Assistant ALFRED WALKER Executive Assistant NOLA WHITE First Assistant

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