WIL!I. PLsil9:w 

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April 17, 1957 

Honorable Max E. Smith, Chairman 

House Appropriations Committee 

House of Representatives 

Capitol Station 

Austin, Texas 

Opinion No. WW-102 

Re: Is it necessary for the 

members of the Legislature 

to know whether the Comptroller of Public Accounts 

would be required to consider the provisions of 

House Bills 8 and 584 in 

arriving at the estimate 

of the revenue available 

for the biennial appropriation bill or any other 

appropriation bill that 

may be enacted by the Regular Session of the 55th 

Legislature? Also related 

Dear Mr. Smithr questions. 

You have requested our opinion on the following questions z 

“1 0 Is it necessary for the Members of the Legislature to know whether the Comptroller of Public 

Accounts would be required to consider the provisions of House Bills. 8 and 584 (providing they 

have been enacted into law) in arriving at the 

estimate of the revenue available for the biennial 

appropriation bill or any other appropriation bill 

that may be enacted by the Regular Session of the 

55th Legislature? 

"2 * If House Bill No. 8 is Dnot an appropriation 

within itself', as you state in your opinion, and 

same passes both houses of the Legislature, will 

it be necessary to pass an Dappropriation bill' In 

order for the teachers and others included to re- 
. . 

Honorable Max E. Smith, page 2 (W-102) 

ceive ,the pay raise embodied'in said H. B.No.81" 

This qiiestioii ixat~~ll~ atildes 'In viek of the' constitutional requ'irement'thst 9io"money shall be 

drawn from~‘the'Treasiiry, but In pursuance'of " " 

specific approy)riations made'by law; . . .'(Const., 

Art. VIII, 'Sec.~~6.) In other words, if H.B.No. 8 

is not an appropriatiotibill, how can money beobtalned under its terms without the specific appropriation required? 

"3 . If B.B.No. 8 does not have to be-certified 

by the Comptroller of Public Accounts, as your 

opinion states, and its provisions become law upon passage by the Legislature and approval by the 

Governor, is- not such procedure a clear-cut-circumvention of the'spirit, if not.the letter, of 

Section @a of Art. III of the Constitution? 

"4 . Will you be"so kind~as to clarify the following sentence which appears in the first paragraph,of page-2 of the opinion: 'Therefore, 

House Bill No:8 constitutes pre-existing law 

authorizing'future appronriations and is not an 

appropriation within itself,' particularly with 

referenceeto'the basis for H. B. No. 8 constituting pre-existing law?" 

Section 6 of Article VIII of the Constitution of Texas 

provides: 

"No money shall be drawn from the Treasury but 

in pursuance of specific appropriations made by 

law; nor shall any appropriation.of money be made 

for a longer term than two years, except by the 

first Legislature to assemble under this Constitution, which may make the necessary appropriations to carry on the government until the 

assemblage of the sixteenth Legislature." 

This constitutional provision controls all appropriations~ 

from the State Treasury and money not specifically appropriated by the Legislature cannot be withdrawn from the 

Treasury. Pickle v. Finley 

(1898); Lightfoot v. 

91 Tex. 484, 44 S;Wi 480 

La ne, iO4 Tex. 447, 140 S.W. 89 (1911). 
Honorable Max E. Smith, page 3 (WW-102) 

House Bill No. 8, as pointed out in Attorney General's 

Opinion WW-93 (1957), establishesnew minimum salary 

schedules for various public school teachers and'adminlstratops and prescribes a formula basis for the calculation of 

same. House Bill 584 provides for a minimum monthly salary 

for school bus drivers with the further provision that funds 

for such purpose shall be allocated from the Foundation 

School Fund.. Neither House Bill 8 nor House Bill 584 makes 

an appropriation which would authorize a withdrawal of any 

state funds from the State Treasury. 

In the past, the Legislature has appropriated to the 

Central Education Agency the Foundation School Fund for 

the purpose of carrying out the provisions of S. B. 116, 

Acts of the 51st Legislature, Regular Session 1949, ch. 

334, p. 626, as amended and which House Bill 6 and House 

Bill 584 proposes to amend. Without these specific appropriations, moneys allocated to the Foundation School Fund 

could not be withdrawn from the State Treasury. 

Under the provisions of Subdivision 4a of Article XX 

of House Bill 8, Acts of the 47th Legislature, Regular 

Session, 1941, as amended, codified in Vernon's as Article 

7083a, Subdivision 4a, the Foundation School Fund Budget 

Committee is directed to allocate, transfer and credit to 

the Foundation School Fund such an amount as Is determined 

from time to time by the Foundation School Fund Budget Committee as may be needed to pay all accrued grants in full. 

Since the Foundation School Fund Budget Committee is 

required to make allocations to the Foundation School Fund 

of moneys needed to carry out the Foundation School Program, 

both House Bill 8 and House Bill 584 will have a direct 

effect on the amount of money available for appro rlation 

and such money, if House Bill 8 and House Bill 58 & are enacted into law, would be immediately set aside by the Comptroller of Public Accounts for such purposes. However, the 

money could not be withdrawn from the State Treasury until 

such a time as the Legislature makes specific appropriations of such allocated funds, and at that time the Comptroller would have to determine if sufficient moneys are 

available to carry out the provisions of House Bills 8 and 

584. 

Section 49a of Article III of the Constitution of Texas 

requires the Comptroller of Public Accounts to certify that 

the amount appropriated in any bill containing an appropriation is withinthe amount estimated to be available in the 

affected funds. Since the allocations required to be made 
Honorable Max E. Smith, page 4 &W-102) 

affect the .amounts that will be available for appropriation, the provisions of House Bill 8 and Rouse Bill 584, 

if enacted into law, will directly affect certification 

by the Comptroller of any bill containing an appropriation, out of any fund from which the allocation has been 

made. 

In view of the foregoing you are advised: 

(1) In answer to your first question it is necessary for the Members of the Legislature to know whether 

the Comptroller of Public Accounts would be required to 

consider the provisions of House Bills 8 and 584 (providing they have been enacted into law) in arriving at 

the estimate of the revenue available for the biennial 

appropriation bill or any other appropriation bill that 

may be enacted by the Regular Session of the 55th Legislature. 

(2) In answer to your second question, it will be 

necessary to pass an appropriation bill in order that 

teachers and others included receive the pay raise embodied in House Bill 8. 

(3) In answer to your third question, you are advised that the passage of House Bill Number 8 prior to 

the passage of the Biennial Appropriation Bill will not 

in an manner circumvent the spirit or the letter of Section $ g(a) of Article III of the Constitution of Texas, 

as the .qFlary increases provided for in House Bill Number 

8, would have to be taken into account by the Comptroller 

in making his certification of the Biennial Appropriation 

Bill. If the Comptroller makes a correct estimate of anticipated revenue then deficit financing would not occur. 

In this connection it is to be noted that Section 49 (a) 

does not prohibit deficit financina. Tt does prohibit 

the valid enactment of any bill containing an approptiation 

which does not contain a certificate by tne Comptroller 

of Public Accounts that the amount appropriated is within the amount estimated to be available in the affected 

funds. However, if after the passage of the Biennial 

Appropriation Bill the Legislature subsequently passed 

House Bill Number 6 or any other legislation reducing 

the amount of money coming into the General Revenue Fund, 

and deficit financing resulted, the spirit of Section 49 

(a) of Article III of the Constitution of Texas would be 

circumvented. We need not pass upon the precise legal 

effect of this until presented. 
. - 

. - 

Honorable Max E. Smith, page 5 (W-102) 

_~ 

._ 

(4) 'Your fourth question requests this office 

to cl&rify the statement 'that House Bill 8'constitutes 

pre-existing' lavi; authoriifng"futura'approprilatlons; 

The sole question for consIderation,before this'office 

Was Whether House~Blll 8 or'Rouse'Bll1 584 contains an 

appropriation~~9qui~ih~~a~~tificafidn of‘the Comptroller 

of Public Accounts pursuant to Section 49a of Article 

III of the Constitution of Texas. 

Before an appropriation can be made for salaries 

for school teachers, State officers or State employees 

or for the payment of any claim against the State of 

Texas, there must-first be a valid pre-existing law 

authorizing the appropriation. Without pre-existing law, 

such as contained in House Bill 8, if enacted into law, 

the Legislature would not be authorized to appropriate 

any money'in excess'of-the amount authorized under existing law. Therefore, if House Bill 8 Is enacted into 

law, it Will constltute'pre-existing law authorizing 

future appropriations even though the bill does not itself contain an appropriation at this time. 

SUMMARY 

Itwlll be necessary to pass an 

appropriation bill In order that 

teachers and others included receive the pay raise embodied In 

House Bill 8 of the 55th Legislature. The Comptroller 'of Public Accounts would be required to 

consider the, provisions of House 

Bills 8 and 584 (providing they 

have been enacted into flaw) in 

arriving at the estimate 
Honorable Max E. Smith, page 6 (WV-102) 

of the revenue.~Wailable for 

the biennj&l apptiopriatlon bill 

or any other appropriation bill 

that may be enacted by the Regular Session of the 55th Legislature. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

JR:zt 

APPROVED: 

OPINION COMMITTEE 

H. Grady Chandler, Chairman 

W. V. Geppert 

C. K. Richards 

J. C. Davis, Jr. 

Edwin P. Horner 

REVIJWEDFOR THE ATTORNEY GENERAL 

BY: 

Geo. P. Blaakburn