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 of the 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 and agencies of the State, 

when requested by the Governor, are authorized to 

transfer and to 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 in making surveys and investigations and taking necessary action resulting therefrom, in the public interest; or for such other purposes 

as will aid the economic growth and general welfare of 

the State; and for civil defense and disaster relief functions as authorized by State law; provided, however, that 

copies of such requests for transfer and notice of the 

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 to which the appropriation is 

made to another agency. In our opinion the section is contrary to the State 

Constitution and is 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 spend what money. To the contrary, the Texas 

Constitution, Article II, Section 1, specifically prohibits the Executive 

Department from exercising power properly attached to the Legislative 

Department. Furthermore, Article VIII, Section 6, Constitution of Texas, 

prohibits the drawing of money from the Treasury “but in pursuance of 

specific appropriations made by law, ” and it has been held that this provision of the Constitution may not be 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 and purpose for expending the state’s money; by 

whom it shall be expended; and the amount to be expended, subject only to 

the veto of the 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 in method of exercise. Texas Constitution, Article IV, Section 14. 

Under Section 19 of the Appropriation Bill, the legislative powers 

to determine purposes and amounts of appropriations are transferred to 

the executive department of government in violation of Article II, Section 

1, Texas Constitution. These legislative functions are non-delegable, and 

the legislature cannot authorize the Executive Department and state agencies, 

at the 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 in the Appropr’iation 

Bill is completely changed, and Section 19 amounts to a blank check to the 

Executive Department to make an appropriation or reappropriation. “It 

is not what has been done but what can be done under a statute that determines its constitutionality. ” See, State v. State Board of Finance, 69 N. M. 

430 P. 2d 925, 932-933 (1961), ant cases there cited. 

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Honorable Robert S. Calvert, page 3 (M-1191) 

“No law shall be passed, except by bill” (Texas Constitution, Article III, Section 30) and, “No money shall be drawn from the Treasury 

but in pursuance of specific appropriations made by law” (Texas Constitution, Article VIII, Section 6. ) A power lodged in the Governor to transfer funds contrary to their appropriated purpose for unspecified purposes 

and in unspecified amounts is not a specific appropriation. An appropriation by the Governor is not “by bill” and therefore not a law in and of itself. 

In view of the foregoing considerations, we must hold that Section 

19 of Article V of the current General Appropriation Act is invalid and unconstitutional. 

SUMMARY 

Article V, Section 19 of the current General 

Appropriations Bill is an unconstitutional delegation 

of legislative 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 

John Grace 

Ralph Rash 

ey General of Texas 

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Honorable Robert S. Calvert, page 4 (M-1191) 

SAMUEL D. MCDANIEL 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

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