### THEAITORNEWGENERAL
OF TEXAS

WILL WILSON AlTGRNEy GENERAL

,March

### '13, 1959

HonorableW. S Heatly, Chairman House Appropriations Committee
Honorable W. S. Fly, Chairman Senate Finance Committee Austin, Texas Opinion No. 

### W-573

Re: Whether a general appropriations act may appropriate or transfer moneys from "SpecialPurpose" Funds so dedicated by the Constitution or by statutes,to other state departments and to the GeneralRevenue Fund in order to finance auxiliary services directly benefiting L"SpecialPurposes".
Dear Messrs. Heatly and Fly:

Your request for an opinion reads .inpart such

as follows: "Briefly,that question is whether a general appropriationsact may appropriate or transfer moneys from 'SpecialPurpose' Funds so dedicated by the Constitutionor by statutes, to other state departments and to the General Revenue Fund in order to finance auxiliary servicesdirectly benefiting such 'SpecialPurposes'.
"Our question can be made more explicit by citing specificexamples.
"1

. In Article III at page 

### 5 of H.B. ~,, 

### 216 and S.B. 42 referred.$bo our Committees, under item 

### 16 there are suggested certain ' appropriations from special funds thereinHonorableW. S. Heatly and HonorableW. S. Fly, page 2. 

### (WW-573)

specified,to finance legal counsel and services by the Attorney General'sOffice. As you know, these suggestedappropriations are fully supportedby administrativeagreements. However, are the appropriations proposed under item 

### 16 fully valid under the pertinent statutes;or do they represent, in effect, an attempt to amend general statutesby an appropriationsact provision? In this connection,Attorney General'sOpinion No. V-1304, dated October 8, 1951, may be pertinent.
"2. In Article III at page 

### 65 of the identicalbills before our Committees, item 

### 23 proposes to transfer $150,000 a year from the State Highway Fund to the General Revenue Fund. The statedpurpose of the transfer is to reimburse the General Revenue Fund for servicesrendered the Highway Departmentand the statehighway program by the Board of Control through Its purchasingprocedures; by the Comptroller of PublicAccounts in its accounting for receipts and in related servicesto the Highway Fund and program; by the Treasurer in its custody of highway funds, Its collection and crediting of depository interest due the Highway Fund; by the Attorney General's Office in its legal services,other than on right-of-wayacquisition, rendered to the Highway Department and its program.
"Is the contemplatedtransfer consonant with ArticleVIII, Section 

### 7, of the Constitutionwhich dedicates motor fuel tax receipts to the constructionand maintenance of highways? In this connection,Attorney General's Opinion addressed to Dr. H. Y. Benedict, then president of the University of Texas, in Rook 

### 374 at page 727, may be pertinent.


### “3

. Although statutoryrather than constitutionalprovisions appear to be Involved, the pending bill proposes 'servicetransfers' for reasons identical to those in example 2 above, in the case of certainprofessional and occupational licensing funds. Such instancesappear In the bill, however; only when the applicable statutesmake no provision for the transfer of stipulatedamounts or bal-Honorable W.S.Heatly & HonorableW.S.Fly, page 

### 3. (WI?-573)

antes, from such special funds to the General Revenue Fund.

'Instancesof suchproposed 'service transfers' appear in Article III at page 

### 26, item 

### 5, for the Game and Fish Commission;page 80, item 9, for the Board of Registration of ProfessionalEngineers; page 102, item 8, for the Board of Dental Examiners;page 98, Item a for the Board of Barber Examiners;page 99, item 7 for the Board of Basic Science Examiners; page 105, item 

### 6, Board of Medical Examiners. "Shouldyou find affirmativelyon the basic question, any suggestionyou might make for improving the language of such provisionswill be appreciatedby our Committee."

Item 

### 16 of the appropriation to the Attorney General's Office creates a special,fundknown as the Attorney General's operating fund into which the Comptroller is authorized to transfer the funds appropriatedby Item 

### 16, namely the Liquor Act Enforcement Fund, the Medical Registration Fund, the Special Game and Fish Fund, the Veterans Land Board special fund, the InsuranceAgents License Fund No. 85, and the Department of Corrections fee account, the particular languagebeing as follows:

"Cut of Attorney General'sOperating Fund:
"The Comptroller is hereby authorized and directed to transfer the funds hereinafter appropriated to the Attorney General's Office into a special fund in the State Treasury to be known as the Attorney General's Operating Fund, and all transfers, deposits~

and balances in the Attorney General's Operating Fund are hereby appropriated for the necessary salaries,wages, traveling and operating expenses, includingprofessional services involved in performing the legal responslbilitiesof the Attorney General's Offlee. No salariespaid from this fund shall _:.'; exceed those authorized for similarwor~kin the Attorney General'sOffice. Where there is not a similarposition in the Attorney General's Office, then it shallbe within the discretion of the Attorney General as to the sal-.

HonorableW.S.Heatly & HonorableW.S.Fly, page 4, 

### (W-573)

ary that shallbe paid the individualwho performs such duties, not to exceed the salaries in Item 

### 3 (Class IV Attorneys]."

Item 23 of the appropriation to the Texas Highway Bepartment makes an appropriationas follows:

"In addition~:to

the appropriations and purposes set forth above, there is also appropriated out of the State Highway Fund for each year of the biennium beginning September 1, 1959, sufficientmoneys to compensate the General Revenue Fund for services rendered to the Highway Departmentby other administrativedepartments financed out of that fund and the Comptroller shall transfer to the General Revenue Fund the following fixed amounts."
Item 9 of the appropriation to the Board for Registration for ProfessionalEngineers provides as follows:

"For the purpose of reimbursing the GeneralRevenue Fund for servicesrendered by Administrative and service departments financed from that fund, there Is also appropriated and the Comptroller shall transfer from the ProfessionalEngineers' Fund (N0.56) to the General Revenue Fund during each year of the bienniumbeginning September 1, 1959, the sum of

. . .'
Item 8 of the appropriation to the Board of Barber Examinersprovides as follows:

"For the purpose of reimbursing the Qeneral Revenue Fund for servicesrendered by administrativeand service departments financed from that fund, there is appropriated and the Comptroller shall transfer from the Barber Examiners Fund (No. 40) to the GeneralRevenue Fund during each year of the biennium beginning September 1, 1959, the sum of

. . ." Other service transfers contain similar language. Therefore,your request is properly divided into two categories:

General %eating the "AttorneyGeneral's operating fund'.

Item 

### 16 of the appropriation to the Attorney

b. The "servicetransfers".HonorableW. S. Heatly & HonorableW.S.Fly, page 5 (WW-573)

.
Item 16 of the appropriation to the Attorney General. Az'regards to Item 16 of the appropriation to the Attorney General'sOffice, It Is our opinion that the validity of such appropriation is governedby the principles of law announced In Attorney General'sOpinionsWW-544 (1959)and m-557 (1959)* InWW-544 it is stated that the Legislature may provide the purposes for which a statutory special fund may be expended and that It is the duty of the Comptroller to keep special statutory funds in a separateaccount from all other funds to be expended only for those purposes authorized by the Legislature. In Attorney General'sOpinionWW-557, It was held that the moneys appropriated from a special statutory fund, to-wit: "TheMedical Registration Fund may be expended for any travel by any employee of the office of the Attorney Generalwhen traveling on official business in the enforcement of the Medical PracticeAct."

The Legislature cannotby rider in the appropriation bill amend a,general law. 

### (1951). Attorney General's OpinionV-1304

Therefore, the Legislature cannot transfer special funds to the General Revenue Fund by an appropriation bill with- .!;:.: out first amending the general law creating the speolal fund. The Legislaturedoes have the power, however, to transfer statutory special funds to the General Revenue Fund by a general law without violating the provision of Section 7 of ArticleVIII of the Constitutionof Texas, relating to the diversion of special funds. Gulf Insurance Companyv. James, 143 Tex. 424, 18 Attorney General'sOpinion WW-544 (1959 S.W.2d 966 (1945);

. Item 16 to the appropriations to the Attorney General appropriatesmoney for the purposes authorized by the general law and it keeps such special funds in a separateaccount to be expended only for the purposes authorized by the Legislature by general law. Since the appropriation is neither contrary to any constitutionalprovision nor to the general law, it is our opinion that such item of the appropriationbill is constitutional.

b. 'Servicetransfers". As noted above, the Legislature cannot transfermoneys set aside by general law for a specific statutorypurpose to the general fund by the general appropriationbill without first amending the general law.

Transfer of constitutional funds could only be accomplished by a constitutionalamendment In view of the provisions of Section 7 of ArticleVIII of the Constitutionof Texas. Carrollv. Williams, 109 Tex. 255, 202 S.W. 504 (1918).HonorableW. S. Heatly & Honorable W. S. Fly, page 6. (WW-$%lj

It is obvious from the wording of the items designated in your request as "servicetransfers that the Legislature is not attempting to divert the purpose for which the fundswere created to the general revenue fund. On the contrary, It is attempting to cause the expenses incurredby various agencies of the executive department of government in the enforcement of the Acts creating the special funds, to be paid from the funds created for the purpose of carryingout such expenses rather than the general revenue fund. The wording of these items,however, makes a lump sum transferwhich will result in the special funds being expended for generalpurposes rather than being expended for the specificpurpose for which they were created. Therefore, such items as worded would be invalid since they are contrary to the general law.

In response to the lastparagraph of your request relative to suggestionsthis office might make, you are advised that the Legislaturemay carry out its intendedpurpose in one of two alternativemethods.

First, the Legislature can amend the general law creating each special fund so as to authorize a transfer of designated amounts to the general fund, as determinedby the Legislature. Second, the Legislaturemay provide in the General AppropriationBill a method for the reimbursement to the Cenera1 Revenue Fund by establishingthe machinery for a factual determination of the value of the servicesrendered by administrative and service departments, or the actual cost of the~' ,' services rendered. This may be accomplishedby designating the LegislativeBudget Board or the Governor or some other agency designated by the Legislature,and, after a factual determination,the authority to execute the proper certification of the value of the servicesrendered. The Comptroller should then be given authority to transfer from the Special Fund to the General Revenue Fund upon such a certificate.
SUMMARY
The Legislature cannot divert the purpose for which funds are createdby items or riders in the GeneralAppropriation Bill without first amending the general law creating the special fund. The Legislaturemay provide in the GeneralAppropriationBill for the reimbursement to the General Revenue Fund for servicesrendered byHonorableW. S. Heatly & HonorableW.S; Fly, page 

### 7. (WW-573)

the administrativeand servicedepartments financed from the General Revenue Fund,providedthat a method is prescribed therein for making a factu~l',determ~nation of the value,of the servicesrendered by administrativea,ndservicedepartments, or the actual cost of the servicesrendered by the administrativeand servicedepartments financed from the General Revenue Fund.
Yours very truly,

WILL WILSON Attorney General of Texas

JR:rm:mfh:zt
APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn, Chairman Assistant

Jack Ucodman Riley Eugene Fletcher Robert Lewis

REVIEWED FOR THE ATTORNEY QENEFlAL BY: W. V. Geppert