Honorable Roy S. Loventhal,Chairman

Livestock Sanitary Commission W. ,T.Waggoner Building ~Fort Worth, Texas Opinion No.@2388-A Re: Reconsideration of OpinionNo.O-2388

Dear Sir:
This departmenthas receivedyour request for a reopnsideration or modification of 'Opinion,No.' o-2388. we set out below the applicableportion of your letter of original request.

"Will you please.

advisewhether or not 'gectionB under head of 'Salariesand Other: Provisions',page 146 Senate.Journal,Rouse ,Bill 427,Acts of the Regular Session of the 46th Legislature, forbids cooperative agencies such as the FederalGovernment or .CountyC,ommissioners' Courts of this State, supplementing the salary of agtate paid employee.
"The Livestock Sanitary Commission of Texas has employees in the office of the PredatoryAnimal Division, Bureau of Biological Survey, United States Department of the Interior, in San Antonio, that are doing work identical to Federal employees In that office.
"The Federal employees compensation is somewhat larger, and the Government or other agencies referred to above agree to supplement the State paid employees salary in order that all those doing the same work in the same office will receive the same compensation." DepartmentalOpinion No.@2388 held as follows'.
~"Thiswill acknowledgereceipt of your request for an opinion on the question of whether .ornot certain employees of the Livestock Sanitary Commission of Texas working **in**. e..

Honorable Roy S. Loventhal, Page 2

the office of the PredatoryAnimal Division, Bureau of Biological Survey, United States Department of the Interior,may have their salaries supplemented either by the Federal government or by the commissioners'courts.

"We assume for the purpose of this opinion. that the employees referred to are provided for and their salaries fixed b the Departmental AppropriationBill of the 16th Legislature of the, State of'Texas.
"The ,followingpertinentprovisions are contained in Senate Bill 427, Acts of the 46th :..eglslature:
"'The appropriationsherein provided are to be construed as themaximum sums to,be appropriated to and for the several purposes ~namedherein, and the amounts are intended to cover and shall cover the entire cost of the respective items and the same shall not be sup- '~ plemented from any other source; and, except was ~otherwiseprovided, no other expenditures shall be made, nor shall any other obligations be incurredby any department of.this State, provided however that nothing herein shall prevent any departmenthead from paying less than the,maximum amount set forth herein for any salaried position.
"'Limitation of Payments. Except as otherwise provided,whenever, by virtue of the provisions of this Act, items are to be paid out of fees, receipts, special funds or out of other funds available for use by a department,~ it is the intention of theLegislature to limit expenditures out of said fees, receipts, special funds or other available funds to the purposes and in the amounts itemizedherein, and it is so ,provided.

"'It is provided that any ,,nurse mployed by the State Health Department not receiving $125.00 per month under thisAct may have herHonorable Roy S. Loventhal, page 3

salary supplemented from Federal funds in the sum of $12.50per month upon approval of the proper Federal authorities.'
"TheLegislature, in providing that the salaries of nurses employed by the State Health Departmentmight be supplemented out of Federal fundsupon approval by the proper Federal authorities,.,manifests a legislative Intent to prohibit the supplementing of the salaryof' any,~other-state employee.

"It is the opinion of this department ~' therefore that the salaries of the employees involved in your inquiry cannot be supplemented, either by theF~ederal government or the commlssloners'~

courts of thisState;"

On September 19,we wrote you as follows:
"This 'department

is in receipt of~your letter of September 12thwherein you request a modification'

or reconsiderationof the above opsnion.
"This has been assigned to.thewriter for attention. .Formy information,please send me ~' a c~opy

of the cooperativeagreement entered Into pursuant to the 'statutoryauthority granted by t;t;.lz;;, 41st Legislature, FirstCalled Session,

. Also, I should appreciate knowing then exact procedurewhereby the Federal Government or agencywould make federal funds available and how itwould be .dlsbursed."

In respons~e

to our inquiry~Mr.~C. R. Landon; DistrictAgent for the United Sta~tes Department of the Interior, advised us:'that they (the two clerks) each havewhat is known asAgent appointmentsunder the United States Department of the Interior. These appointments state the amount of salary to be paid from Federal funds and the amount to be paid from State funds. The total,salary is based upon the Federal salary rates for the type of work required of these employees."

In the light of this information, itwould seem that the Federal Government pays the two clerks in consideration for their services rendered pursuant to theirHonorable Roy S. ~Loventhal,page 4

individual capacity as agents of theUnited States Departme'nt

of the Interior, and this being done irrespectiveof the fact that they incidentally occupy at the same time the position of State employees.
The money paid these clerks in their capac'ity as a 'Federalagent springs from a source and travels a channel s'eparate and distinct from those funds appropriated by the State Legislature. These fundsnever reach the State Treasury. The point of its origin and. disbursement is the Unlted.StatesTreasury. (SeeReport of State Comptroller~Re:FederalFunds.)

Senate Bill No.~427,,Acts of the 46th .Legislature, is the .current.~Approprlation Bill. 'Certainportions of that Act which are considered as~applicablefollow:

(1) ~"Theappropriationsherein provided are to be construed as themaximum sums tobe appropriated to and for the several purposes named herein, and the amounts are intended to cover and shall~cover the entire cost of the respective Items and the same shall not be supplemented from~any. other source.“ (2) ,,?The

properofficeror officers of ~' any State Departments,bureaus, ,ordivisions of Staae Agencies are hereby authorized to make application for and accept-anygifts, grants, or allotments of funds from the United States Government to be used on State cooperative and other Federal projects and programs in, Texas.

. .Any of such Federal Funds as may be deposited in the State Treasury are hereby‘ appropriated to t~he specific purpose authorlzedby the Federal~Government." '(Note: The numerical classificationof these sections is ours).

Acts 1929, 4lst Legislature,First Called Session, p. 235, authorizes the Livestock Sanitary Commission of Texas to enter into coop,erative agreementswith theUnited StatesHonorable Roy S. Loventhal, Page 5

Departm nt of the Interior to effect the control and eradica

eion of predatory animals.

It is now~

submitted that the above quoted panagraphs of theAppropriationBill do not apply to, and, therefore, cannot control the situation presented~here.

It is to be noted that Section (l), supra, uses the phrase "The appropriationsherein provided." This languagegives rise to the supposition that theLegislature did not intend to deal with funds extraneousto thosementioned in and specifically dealtwith in the Act. In Section (2), supra, the Legislature sought,to appropriate "any

. . in the State Treasury:" Federal Funds asmay be deposited The Federal Funds used to sup; plement the clerks' salaries in the instant casenever reach the State Treasury; therefore, theyhave not been appropriatedby the Legislature. Consequentlyno provision of thatAct could possibly be made applicable.

The Appropriation .Billand its provisions can exerciseno Influence over the funds under consideration by reason that they are completely foreign to its @here of applicability. There is here a direct relationship between the FederalGovernment and certain of its agents. They perform their Federal duties forwhich they receive theirFederal pay. There exists no Intermediaryperiod whereby the State could claim or establish jurisdlctldn for the purpose of directing the subsequent disbursement.
Article 16,.Section 33, of the Texas Constitution provides:
"The accounting officer of this State shall neither draw nor pay awarrant upon the treasury in favor of any person, fo,r salary or compensation as agent, officer
or appointee,who holds at the same time any other office or position of honor, trust or profit,under this State or the United States, except as prescribed in this Constitution. Provided that this restriction as to the drawing and paying ofwarrants upon the treasury shall not apply to officers of the~National Guard of Texas, theNational Guard Reserve, the Officers Reserve Corps of the United States, nor tohenlistedmen of theNational Guard, theNational Guard Reserve, and the Organized Reserves of the United States.'Honorable Roy S. Loventhal, Page 6

The clerks are commissionedagents of the United States Department of the Interior,and, accordingly,hold Federal positions of "honor, meaning of that phrase. trust,or profit"within 'the None of the enumerated exemptions in the above quoted constitutionalprovisipn embraces this situation.

Therefore, under the given facts, our opinion Is that no provision of theAppropriationBill would prevent the State employee's salary frombeing supplementedby Federal Funds; but, Section 33, Article 16, supra,would prohibit them from receiving any salary or,compensationfor their services rendered theState so long as this Federal relationship continues.

Any portion of departmentalopinion numbered O-2388 in conflictherewith is overruled.

Yours very truly

ATTORNEYGENERAL OFTEXAS

BY Wm.-J.Fanning

Assistant

BY GW:RS

APPROVED Oct.,22, 1940 Gerald C. Mann Attorney General of Texas Grundy Williams