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### April 17, 1957

Honorable Max E. Smith, Chairman House AppropriationsCommittee House of Representatives Capitol Station Austin, Texas OpinionNo. WW-102

Re: Is it necessary for the members of the Legislature to knowwhether the Comptroller of PublicAccounts would be required to consider the provisionsof House Bills 8 and 584 in arriving at the estimate of the revenue available for the biennial appropriationbill or any other appropriationbill that may be enactedby the Regular Session of the 55th Legislature? Also related Dear Mr. Smithr questions.

You have requested our opinion on the followingquestionsz
“10 Is it necessary for the Members of the Legislature to knowwhether the Comptroller of Public Accountswould be required to consider the provisions of House Bills.8 and 584 (providingthey have been enacted into law) in arriving at the estimate of the revenue available for the biennial appropriationbill or any other appropriationbill that may be enactedby the Regular Session of the 55th Legislature?

"2* If House Bill No. 8 is Dnotan appropriation within itself', as you state in your opinion, and
same passes both houses of the Legislature,will it be necessary to pass an Dappropriationbill' In order for the teachers and others included to re-. .

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

ceive ,thepay raise embodied'insaid H. B.No.81" This qiiestioii

ixat~~ll~ atildes

'Inviek of the'constitutionalrequ'irement'thst9io"moneyshallbe drawn from~‘the'Treasiiry, but In pursuance'of " " specificapproy)riations made'by law;

. . .'(Const., Art. VIII, 'Sec.~~6.)In otherwords, if H.B.No. 8 is not an appropriatiotibill,how can money beobtalned under its termswithout the specificappropriationrequired?

"3

. If B.B.No. 8 does not have to be-certified by the Comptroller of PublicAccounts, as your opinion states,and its provisionsbecome law upon passageby the Legislatureand approval by the Governor, is-

not such procedurea clear-cut-circumventionof 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 sentencewhich appears in the first paragraph,of page-2 of the opinion: 'Therefore, House Bill No:8 constitutespre-existing law authorizing'futureappronriationsand is not an appropriationwithin itself,'particularlywith referenceeto'thebasis for H. B. No. 8 constituting pre-existinglaw?"
Section 6 of ArticleVIII of the Constitutionof Texas provides:

"Nomoney shallbe drawn from the Treasurybut in pursuance of specific appropriationsmade by law; nor shall any appropriation.ofmoney be made for a longer term than two years, exceptby the first Legislature to assemble under this Constitution,which may make the necessary appropriations to carry on the governmentuntil the assemblage of the sixteenthLegislature."

This constitutionalprovision controlsall appropriations~ from the State Treasury and money not specificallyappropriatedby the Legislature cannotbe withdrawn from the Treasury. Picklev. Finley (1898);Lightfootv. 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 prescribesa formula basis for the calculation of
same. House Bill 584 provides for a minimum monthly salary for schoolbus driverswith 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 appropriationwhich would authorize a withdrawal of any state funds from the State Treasury.
In the past, the Legislaturehas 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 provisionsof 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 PublicAccounts for such purposes. However, the money could not be withdrawn from the State Treasury until such a time as the Legislaturemakes specific appropriations of such allocated funds, and at that time the Comptroller would have to determine if sufficientmoneys are available to carry out the provisionsof House Bills 8 and 584.
Section 49a of Article III of the Constitution of Texas requires the Comptroller of PublicAccounts to certify that the amount appropriated in any bill containingan appropriation is withinthe amount estimated to be available in the affected funds. Since the allocations required to be madeHonorable Max E. Smith, page 4 &W-102)

affect the .amountsthat will be available for appropriation, the provisionsof 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 allocationhas been made.

In view of the foregoingyou are advised:
(1) In answer to your first question it is necessary for the Members of the Legislature to know whether the Comptroller of PublicAccountswould 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 appropriationbill or any other appropriationbill that may be enacted by theRegular Session of the 55th Legislature.
(2) In answer to your second question, it will be necessary to pass an appropriationbill in order that teachers and others includedreceive 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 BiennialAppropriationBill 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 .qFlaryincreases provided for in House Bill Number 8, would have to be taken into account by the Comptroller in making his certificationof the Biennial Appropriation Bill. If the Comptroller makes a correct estimate of anticipated revenue then deficit financingwould 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 certificateby tne Comptroller of PublicAccounts that the amount appropriated is within the amount estimated to be available in the affected funds. However, if after the passage of the Biennial AppropriationBill the Legislature subsequentlypassed House Bill Number 6 or any other legislation reducing the amount of money coming into the GeneralRevenue 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) 'Yourfourth question requests this office to cl&rify the statement 'thatHouse Bill 8'constitutes pre-existing'

lavi; authoriifng"futura'approprilatlons; The sole question for consIderation,beforethis'office Was Whether House~Blll 8 or'Rouse'Bll1584 contains an appropriation~~9qui~ih~~a~~tificafidnof‘the Comptroller of PublicAccounts 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-firstbe a valid pre-existing law authorizing the appropriation. Without pre-existing law, such as contained in House Bill 8, if enacted into law, the Legislaturewould not be authorized to appropriate any money'in excess'of-theamount authorized under existing law. Therefore, if House Bill 8 Is enacted into law, itWill constltute'pre-existinglaw authorizing future appropriations even though the bill does not itself contain an appropriation at this time.

SUMMARY

Itwlll be necessary to pass an appropriationbill In order that teachers and others includedreceive the pay raise embodied In House Bill 8 of the 55th Legislature. The Comptroller 'ofPublic Accountswould be required to consider the,

provisions of House Bills 8 and 584 (providingthey have been enacted intoflaw)in arriving at the estimateHonorable Max E. Smith, page 6 **(WV-102)**

of the revenue.~Wailable for the biennj&l apptiopriatlon bill
or any other appropriationbill **that** may be enactedby theRegular Session of the 55th Legislature.

Yours very truly,

WILL WILSON Attorney General of Texas

JR:zt

APPROVED:

OPINIONCOMMITTEE

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