October 8, 1951 

Executive Director 

Board for Texas State Hospitals 

and Special Schools 

Austin, Texas Opinion No. 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 in Article 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 52nd Leg. R.S. 

1951, ch. 499, p. 1228 (the general appropriation bill), 

pertaining to the appropriation for the Board for Texas 

State Hospitals and Special Schools and the State Hospitals 

and Special Schools under the jurisdiction of the Board. 

You state that the questions arise by virtue of the holding 

of this office in Opinion V-1254 (1951) with regard to the 

constitutionality of the riders placing additional duties 

upon the Legislative Budget Board. You then ask: 

“1. Whether the Board for Texas State Hospltak and Special Schools may add or substitute 

position titles in accordance with 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 institution and the central office appropriations or between institutions including the central office appropriations as 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 construction of warehouse facilities 
Hon. Larry 0. Cox, Page 2 (V-1305) 

as provided in subsection (c) of Section 

10, Article 2, H.B. 426." 

You subsequently requested the opinion of this 

office with regard to the authority of the Board to use 

the annual $600,000 appropriation to the Board's Special 

Reserve Account set up 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 appropriation was made to 

cover unforeseen emergencies and needs which could not 

be cared for by speciflc,appropriatlons to the various 

institutions because 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 appropriated diret to each institution. 

The rider (Sec. 2 of Art, II, House Bill 426, 

Eitwhich gives rise to your first question provides 

: 

"No institutions shall employ any person 

at any title not contained in the list of titles of positions under the heading of Medical 

Treatment and Patient Care Division for each 

institution provided in this Article, unless 

or until there has been prior approval by the 

Legislative Budget Board to add or substitute 

position titles with rates of pay within the 

following maximum salary scales appropriate to 

the class of position herein set forth,11 

(There follows a list of position titles and 

the salaries to be paid the persons having 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 transferred between line items of 

an institution and Central Office Appropriation 

or between institutions including the Central 

Office appropriations as provided in this Article, without prior written approval of the Legislative Budget Board. All requests for said 

-. 

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

transfers submitted to the Legislative Budget Board must have the prior written approval of the Board and/or Council. Requests 

for all said transfers must be submitted to 

the Legislative Budget Board in writing with 

complete and adequate justification, ,together 

with all pertinent supporting data pertalning to the necessity for such transfer, including a certified copy of the minute or minutes approving said request for transfer by 

the Board and/or Council. Upon approval of 

transfer requests made by the Board and/or 

Council, the Legislative Budget Board shall 

certify same in writing to the State Comptroller of Public Accounts who 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 another within the appropriations of any or all 

institutions and 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 Legislative Budget 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: 

"Central Warehouse System: The Board 

is hereby authorized to establish a central 

warehouse system of not to exceed three warehouses to serve all Institutions under the 

jurisdiction of 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 Warehouse Revolving 

Fund, to purchase stocks of goods, supplies, 

materials and equipment to be distributed to 

the said institutions Included In this Article, 

on a reimbursable basis. Any funds collected 

by the Central Warehouse System from sales is 

hereby reappropriated to the Warehouse Revolvfng Fund for future purchases and operations. 
Hon. Larry 0. Cox, Page 4 (V-1305) 

Charges made to institutions for such merchandise furnished shall include overhead 

charges sufficient to meet the cost of operation of said warehouse system. Provided, however, that the Board of Control 

shall continue to handle purchases for the 

Board in the same manner as is done for 

other State agencies. All stocks of goods, 

supplies, materials and equipment belonglng to any institution in excess of a three 

(3) month normal usage requirement are hereby transferred to the Central Warehouse System without cash or credit reimbursement. 

All stocks of goods, supplies, materials 

and equipment required 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 for warehouse purposes; however, no expenditure from any source 

shall be made for renovation or new construction of warehouse facilities without obtaining prior written approval of the Legislative Budget Board.” 

Section 9(a) of Article II, House Bill 426, m, 

which is Involved in the question you asked subsequent to 

the opinion request considered herein, provides: 

lfSec. 9. (a) There is hereby appropriated out of any moneys In the State Treasury 

not otherwise appropriated the sum of Six 

Hundred Thousand Dollars ($600,000) for the 

fiscal year beginning September 1, 1951, and 

ending August. 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 ending August 

31, 1953, to be set up anA known as the 

Board Special Reserve Account to be made avail- 

;:ble to meet unforeseen emergencies which may 

arise during the biennium covered by this appropriation for Hospitals and Special Schools. 

Any balance remaining in said reserve account 

as of August 31, 1952, is hereby appropriated 

to said account and made available for the fiscal year beginning September 1, 1952. Said 
Hon. Larry 0. Cox, Page 5 (V-1305) 

Board Special Reserve Account shall be expended only for purchase of food clothing 

and dry goods medicines, and ut 1 lity service, 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 ‘be used for the operation, including salaries, of said institution. 

“All transfers from said account shall 

require prior written approval by the Legislative Budget Board, in the same manner 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 Legislative Budget Board is also required 

prior to the expenditure or transfer of the funds appropriated or the change in the titles listed in other parts 

of the appropriation bill. In Attorney General’s Opinion 

V-1254 (1951), it was stated that 

“Since the State departments, institutions of higher education, and other State 

institutions are not a part of the legislative branch of the State government, these 

riders, in requiring further itemization of 

appropriations or approval of the expenditure of appropriated funds by the Legislative 

Budget Board, violate the constitutional provision prescribing the separation of powers. 

N . . 0 

“Therefore, in so far as the powers and 

duties of the Legislative Budget Board are 

extended in House Bill 426 beyond the duties 

prescribed for that Board in the statute by 

which it was created, the Legislature has attempted to place upon the Board duties which 

are in violation of Section 1 of Article II 

of the Texas Constitution.” 

The riders involved in your request, except Section 9(a) of Article II, are worded in a negative manner, 

and the questions arise because of a possible contention 

that after striking down the unconstitutional portion, the 

authority conditionally granted thereby would be expressly 
Hon. Larry 0. Cox, Page 6 (v-1305) 

prohibited. This is an extremely technical construction 

which is dependent solely upon the grammatical style in 

which the Legislature expressed its willingness for certain functions to be performed by the Board for Texas 

State Hospitals and Special Schools. 

The effect of this construction would be that 

the Legislature intended for the Board and the hospitals 

and schools under the jurisdiction. of the Board to oper- 

'iate strictly under the line appropriations during the biennium unless the operation was 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 system unless 

they could be carried out by the Legislative Budget Board. 

In State v. Carter 27 P.2d 617 (Okla. Sup. 

1933)) the Court had before it an appropriation bill in 

which it was provided that the funds appropriated to the 

Corporation Commission were to be expended-"by and with 

the approval of the Governoron The Court held that the 

approval provision was an attempt to place general legislation in an appropriation bill and, therefore, unconstitutional. It was contended that if the limitation was 

void the entire appropriation must fall. In overruling 

this contention, the Court said: 

II We are dealing with a general 

appropiiit;on bill. None of the decisions 

cited applies to such a bill. If the rule 

stated is applicable to the provisions of 

the general appropriation bill, its application is dependent upon a construction of the 

legislative Intent. In determining that 

question, the rule is stated in 59 Corpus 

Juris, S 206, pages 642, 646, to be I* * * 

If, when the invalid part is stricken out, 

that which remains is complete in itself and 

capable of being executed in accordance with 

apparent legislative intent wholly independent of that which was rejec 4 ed, it must be 

sustained to that extent; and this rule is 

especially applicable where the statute provides for two distinct subjects. In this 

connection it has frequently been declared 

that the valid part of a statute will be sustained where 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 former without the latter, if 

it had known of the invalidity, or, as otherwise stated, if the valid or.invalid parts are 

- 
Hon. Larry 0. Cox, Page 7 (V-1305) 

not so intimately connected as to raise the presumption that the legislature would not have enacted the one without the other, the act will be 

upheld so far as valid. On the other hand, the 

whole statute will be declared invalid where the 

constitutional and unconstitutional provisions 

are so connected and interdependent in subject 

matter, meaning, and purpose as to preclude the 

presumption that the legislature would have passed 

the one without the other, but, on the contrary, 

justify the conclusion that the legislature intended them as a whole and would not have enacted 

a part only. In other words, the whole act will 

be declared invalid where the unconstitutional 

part Is so connected with 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 desired by the legislature, or is the consideration and Inducement of the whole act, although 

it has also been held that the rule of lndlvisibility where the invalid part is the inducement 

or consideration of the whole act does not apply 

if the lnvalld provisions, although appearing in 

the same chapter of the revised laws, were enacted 

in previous years. In determining the question 

whether the act would have been passed without 

the invalid part, the rule has been laid down, 

that, If the mere elision of the words or provisions which give an unconstitutional effect, will 

leave a consistent and workable act, the remainder will be valid; but if modifications or limitations must be inserted or understood to avoid 

the fatally broad effect of the statutory language, the whole act must fail. l * *I 

"As to the item in question, when measured 

by that rule, we find that the lelislon of the 

words or provisions which give an unconstitutional effect, will leave a consistent and workable act.' that Is, will leave an appropriation 

singular, definite, land certain. That which 

will remain, ‘is complete in Itself and capable 

of being executed In accordance with 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 former without the latter, if it had known of the invalidity of the 
Hon. Larry 0. Cox, Page 8 (V-13@) 

latter. We cannot hold otherwise without 

holding that the Legislature would not have 

made an appropriation for the purpose of 

enabling the Corporation Commission to perform a.duty enjoined upon It by the Constitution, if it had known that it could not 

require the amount appropriated to be expended 'by and with the approval of the 

Governor.' We cannot 80 hold. We must give 

to the Legislature every presumption of an 

intention to conform its actions to the provisions of the Constitution. We do so in 

this case. We therefore hold that, had the 

Legislature known of the invalidity of its 

attempt in a general appropriation bill to 

vest the Governor with power that he did 

not theretofore have, it would have made the 

appropriation for the performance of the 

constitutional duty of~the Corporation Commission notwithstanding. The Legislature 

made the appropriation. Evidently It was 

intended to be used. There Is nothing in 

the act to indicate any other intention. The 

fact that the Legislature attempted 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 legislative provisions were void, the appropriations made 

in a general appropriation bill would fail. 

We refuse to so hold. To do so would be to 

hold that the Legislature did not intend to 

make appropriations for the conduct of the 

government of this state, unless its attempt 

to legislate in a general appropriation bill, 

in violation of the plain and unambiguous provisions of the Constitution, was lawful." 

Texas Courts have applied these same rules of 

construction in cases Involving statutes which 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 these rules, all of Articles II of House 

Bill 426 must be considered in determining if the authority contained in the quoted riders would have been included In the Article without the proviso requiring approval by the Legislative Budget Board,. A technical construction which would remove a word or phrase from a 
Hon. Larry 0. Cox, Page 9 (V-1305) 

sentence and attempt to apply literally what remains 

would be prohibited. 

The primary intent of the Legislature in passing the various provisions in Article II, as shown by 

the wording of those provisions, was to set up a method 

whereby transfers of funds and other changes could be 

made in order for the State Hospitals and Special ,Schools 

to be efficiently and economically operated. The procedure adopted was to place the initiating power in the 

Board for State Hospitals and Special Schools, and then 

have their action approved by the Legislative Budget 

Board. We think it is clearly evident that the power to 

carry out these provisions would have been placed solely 

in the Board for State Hospitals and Special Schools had 

the Legislature known the Budget Board requirement was 

unconstitutional. The number of riders contained in the 

“General ProvlsionsV’ portion of Article II which grant 

to the Board for Texas State Hospitals and Special Sd’mols 

authority to make changes in the line appropriations set 

out in Section 1 shows that the Legislature was cognizant 

of the fact that the specific appropriations must be supplemented and changed to some extent. In the final analysis, it appears that it would be virtually impossible for 

the Board to carry out its functions without 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) of Art. II, House Bill 

426) which provides for the transfer from the Board’s Special Zeserve Account. The transferring authority is contained in affirmative language in the first paragraph, 

whereas in a subsequent paragraph the transfers are conditioned upon prior written approval by the Legislative 

Budget Board. Should this second paragraph be deleted as 

unconstitutional the 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 AdmuITat ive B*i 

l& N.W. l:O (de;. “,uit ?924), the supervisory contra of the agricultural college was, by the 
Hon. Larry 0. Cox, Page 10 (V-1305) 

appropriation bill, placed in the State Administrative 

Board instead of the State Board of Agriculture which 

previously had supervised the college. The Court held 

that the provision in the appropriation bill transferring the supervision of the college was invalid and the 

contention was made that the invalidity of the provision nullified the entire appropriation. In overruling 

this contention, the Court stated: 

,I . This being true the question 

arises, Does the unconstitutional provision 

of the statute nullify the whole act? To 

hold that it doe.s, we must assume that the 

Legislature would not have made the appropriation except for the fact that the money was 

to be expended under the general supervisory 

control of the state administrative board. 

The main purpose of the Legislature was to 

grant an appropriation to the college to enable it to carry on its extension work in cooperation with the Pederal authorities. A 

previous Legislature had committed the state 

to that policy. The appropriation was made 

to support one of the most Important activities of the college. In making it the Leglslature was but obeying the mandate of the Constitution that it should grant appropriations 

for the support of the college and its various 

activities. 

of 1908. 

Section 10, art. 11, Constitution 

It had become a fixed habit with 

this Legislature to confer upon 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 administrative board could 

not exercise a general supervisory control 

over its expenditure. As we have indicated, 

the appropriation was necassary to carry on 

the very important work of taking the college 

to the people. Its purpose was mainly to bsnsfit those who could not reside at the college. 

The Legislature did not want this work to fail; 

it knew that an appropriation was necessary if 

It were to be continued. The main purposa was 

the appropriation. The supervisory control was 

but incidental, due to the legislative policy. 
Hon. Larry 0. Cox, Page 11 (V-1305) 

In these circumstances we think that the Legislature did not intend the appropriation to 

fail, and that the attempt to confer unconstitutional authority on the state adminlstrative board did not nullify the balance of the 

act. . ..'I 

The Texas Legislature, in House Bill 426, placrd 

supervisory control over many appropriations in the Legislative Budget Board. The fact that the supervisory control 

is unconstitutional does not have the effect of doing away 

with the affirmative action which was conditioned upon the 

Board's approval. The legislative history of the provisions 

in question reveal that in the past the administrative body 

which had. control of the State Hospitals and Special Schools 

was always given the power to take the a'ctions in question 

without the approval of a Legislative Budget Board. This is 

revealed in the following paragraph from your request: 

"Inasmuch as previous legislatures have 

nearly always provided for changes and substitutions of amounts appropriated to the State 

Board of Control and the Board for Texas State 

Hospitals, it is the interpretation of this 

department that the Legislature intended that 

the Board for Texas State Hospitals and Special 

Schools should have the authority to add or 

substitute position titles in accordance with 

Section 2 and to tran~sfer appropriations in accordance with 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 

appropriation bills back to 1941, and we find 

that transfer of appropriations was 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 situation was 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 shall not issue a 

warrant in payment of the salary of any such 
Hon. Larry 0. Cox, Page 12 07-1305) 

employee for any month unless and until the 

affidavit required herein has been filed for 

said previous month.* 

Holding the rider invalid, the Court said: 

'There being no statutory duty requiring petitioners to furnish uncertified, unofficial copies of opinions of the Courts of 

civil Appeals, no statute Pixing any fee for 

such services, and no Valid statute requiring 

that money received therefor be deposited in 

the State Treasury 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 

such receipts, 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 appropriation to be effective, although the attached rider was negative in form 

and the condition was 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 Legislative Budget 

Board is not required. 

The Board for Texas State Hospitals and 

Special Schools has authority to add or substitute position titles under Sec. 2 of Art. 

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 appropriated funds for renovation or 

new construction of warehouse facilities as 

provided in Sec. 10(c) of Art. 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 Special Reserve 

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 

schools and hospitals. 

The unconstitutionality of the requirement of Legislative Budget 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 

Executive Assistant 

Charles D. Mathews 

First Assistant 

Assistants 

EJ:EWT:wb