THEAITORNEWGENERAL 

OF TEXAS 

WILL WILSON 

AlTGRNEy GENERAL 

,March '13, 1959 

Honorable W. 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 "Special Purpose" Funds 

so dedicated by the Constitution or by statutes, to other 

state departments and to the 

General Revenue Fund in order 

to finance auxiliary services 

directly benefiting 

L"Special Purposes". 

Dear Messrs. Heatly and Fly: 

Your request for an opinion reads .in part 

such 

as follows: 

"Briefly, that question is whether a 

general appropriations act may appropriate 

or transfer moneys from 'Special Purpose' 

Funds so dedicated by the Constitution or 

by statutes, to other state departments and 

to the General Revenue Fund in order to finance auxiliary services directly benefiting 

such 'Special Purposes'. 

"Our question can be made more explicit 

by citing specific examples. 

"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 therein 
Honorable W. S. Heatly and Honorable W. S. Fly, page 2. (WW-573) 

specified, to finance legal counsel and services by the Attorney General's Office. As 

you know, these suggested appropriations 

are fully supported by administrative agreements. 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 statutes by an appropriations act 

provision? In this connection, Attorney 

General's Opinion No. V-1304, dated October 8, 1951, may be pertinent. 

"2. In Article III at page 65 of the 

identical bills before our Committees, 

item 23 proposes to transfer $150,000 a 

year from the State Highway Fund to the 

General Revenue Fund. The stated purpose 

of the transfer is to reimburse the General Revenue Fund for services rendered the 

Highway Department and the state highway 

program by the Board of Control through 

Its purchasing procedures; by the Comptroller of Public Accounts in its accounting 

for receipts and in related services to 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-way acquisition, rendered to the 

Highway Department and its program. 

"Is the contemplated transfer consonant 

with Article VIII, Section 7, of the Constitution which dedicates motor fuel tax receipts 

to the construction and 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 statutory rather than constitutional provisions appear to be Involved, 

the pending bill proposes 'service transfers' 

for reasons identical to those in example 2 

above, in the case of certain professional 

and occupational licensing funds. Such instances appear In the bill, however; only 

when the applicable statutes make no provision 

for the transfer of stipulated amounts or bal- 
Honorable W.S.Heatly & Honorable W.S.Fly, page 3. (WI?-573) 

antes, from such special funds to the General 

Revenue Fund. 

'Instances of such proposed '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 Professional Engineers; 

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. 

"Should you find affirmatively on the 

basic question, any suggestion you might 

make for improving the language of such 

provisions will be appreciated by our Committee." 

Item 16 of the appropriation to the Attorney General's Office creates a special,fund known as the Attorney 

General's operating fund into which the Comptroller is authorized to transfer the funds appropriated by 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 Insurance Agents License Fund 

No. 85, and the Department of Corrections fee account, the 

particular language being as follows: 

"Cut of Attorney General's Operating 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, including professional 

services involved in performing the legal responslbilities of the Attorney General's Offlee. No salaries paid from this fund shall _:.'; 

exceed those authorized for similar wor~k in 

the Attorney General's Office. Where there 

is not a similar position in the Attorney General's Office, then it shall be within the discretion of the Attorney General as to the sal- 
. 

Honorable W.S.Heatly & Honorable W.S.Fly, page 4, (W-573) 

ary that shall be paid the individual who 

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 appropriation as 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, sufficient moneys to compensate the General Revenue Fund for services 

rendered to the Highway Department by other 

administrative departments 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 Professional Engineers provides as follows: 

"For the purpose of reimbursing the 

General Revenue Fund for services rendered 

by Administrative and service departments 

financed from that fund, there Is also appropriated and the Comptroller shall transfer 

from the Professional Engineers' Fund (N0.56) 

to the General Revenue Fund during each year 

of the biennium beginning September 1, 1959, 

the sum of . . .' 

Item 8 of the appropriation to the Board of Barber 

Examiners provides as follows: 

"For the purpose of reimbursing the 

Qeneral Revenue Fund for services rendered 

by administrative and service departments 

financed from that fund, there is appropriated and the Comptroller shall transfer 

from the Barber Examiners Fund (No. 40) to 

the General Revenue 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 "Attorney General's operating fund'. 

Item 16 of the appropriation to the Attorney 

b. The "service transfers". 
Honorable W. S. Heatly & Honorable W.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's Office, It Is our opinion that the validity 

of such appropriation is governed by the principles of law 

announced In Attorney General's Opinions WW-544 (1959) and 

m-557 (1959) * In WW-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 separate account from all 

other funds to be expended only for those purposes authorized 

by the Legislature. In Attorney General's Opinion WW-557, It 

was held that the moneys appropriated from a special statutory 

fund, to-wit: "The Medical Registration Fund may be expended 

for any travel by any employee of the office of the Attorney 

General when traveling on official business in the enforcement 

of the Medical Practice Act." 

The Legislature cannot by rider in the appropriation 

bill amend a, general law. 

(1951). 

Attorney General's Opinion V-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 Legislature does 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 

Article VIII of the Constitution of Texas, relating to the 

diversion of special funds. Gulf Insurance Company v. James, 

143 Tex. 424, 18 Attorney General's Opinion WW-544 (1959 S.W.2d 966 (1945); 

. 

Item 16 to the appropriations to the Attorney General 

appropriates money for the purposes authorized by the general 

law and it keeps such special funds in a separate account to be 

expended only for the purposes authorized by the Legislature 

by general law. Since the appropriation is neither contrary 

to any constitutional provision nor to the general law, it is 

our opinion that such item of the appropriation bill is constitutional. 

b. 'Service transfers". As noted above, the Legislature cannot transfer moneys set aside by general law for a 

specific statutory purpose to the general fund by the general 

appropriation bill without first amending the general law. 

Transfer of constitutional funds could only be accomplished by a constitutional amendment In view of the provisions of Section 7 of Article VIII of the Constitution of Texas. 

Carroll v. Williams, 109 Tex. 255, 202 S.W. 504 (1918). 
Honorable W. S. Heatly & Honorable W. S. Fly, page 6. (WW-$%lj 

It is obvious from the wording of the items designated 

in your request as "service transfers that the Legislature is 

not attempting to divert the purpose for which the funds were 

created to the general revenue fund. On the contrary, It is 

attempting to cause the expenses incurred by 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 carrying out such expenses 

rather than the general revenue fund. The wording of these 

items, however, makes a lump sum transfer which will result 

in the special funds being expended for general purposes rather 

than being expended for the specific purpose 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 last paragraph of your request 

relative to suggestions this office might make, you are 

advised that the Legislature may carry out its intended purpose in one of two alternative methods. 

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 determined by the Legislature. 

Second, the Legislature may provide in the General 

Appropriation Bill a method for the reimbursement to the Cenera1 Revenue Fund by establishing the machinery for a factual 

determination of the value of the services rendered by administrative and service departments, or the actual cost of the ~' ,' 

services rendered. This may be accomplished by designating 

the Legislative Budget 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 services rendered. 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 created by 

items or riders in the General Appropriation Bill without first amending 

the general law creating the special 

fund. The Legislature may provide 

in the General Appropriation Bill for 

the reimbursement to the General 

Revenue Fund for services rendered by 
Honorable W. S. Heatly & Honorable W.S; Fly, page 7. (WW-573) 

the administrative and service departments financed from the General Revenue 

Fund,provided that a method is prescribed 

therein for making a factu~l',determ~nation 

of the value,of the services rendered by 

administrative a,nd service departments, 

or the actual cost of the services rendered 

by the administrative and service departments 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