THEATTORNEYGENERAL 

OF..EXAS 

GFRALD C. MANN 

AUSTIN ~&TEXAS 

Honorable George H. Sheppard 

Comptroller of Public Accounts 

Austin, Texas 

Dear Sir: Opinion No. O-5537 

Re: Construction of appropriation for 

Gas Utilities Division of the Railroad Commission, 

This is in response to the request contained in your 

letter of August 10, 1943, for the opinion of thI.s department 

construing the language of the departmental appropriation bill 

(Acts 1943, 48th Leg., R.S., Ch. 400, Vernon's Texas Session 

Law Service, pps. 885-1029) as it pertains to the license fees 

received by the Texas Railroad Commission in administering the 

provisions of Chapter 2 of the Acts of the 46th Legislature, pa 

501, (Art. 6053a, V,A.C.S.) regulating liquefied petroleum gas 

and containers therefor. 

Section 2b (2) and 2b (8) of Article 6053a, V.A,C.S,, 

are pertinent: 

"(2) For the purpose of defraying the expenses 

of admfnistering this Act, each pe:t=son, ffrm, 

assocfation, corporation, OP manufacturer engaged 

in the manufacture and/or assembly and sale of any 

apparatus to be used for the storage and/or dispensing of liquefied petroleum gas, or engaged Pn the 

business of transporting or dfspensing liquefied 

petroleum gas, and/or sale and/or Mstaliation of 

any apparaks for the storage and/or dispersing of 

liquefied petroleum gas, shall at the time of i,isuance of such license, and annually thereafte: 

on or bet,ween September 1st and September 15th of 

each calendar year pay to the Railroad Commission 

a special fee of Twenty-five Dollars ($25) 0 If 

the license here provided for is issued after the 

month of September of any year, the fee shall be 

prordated to the remaining portion of the year to 

August 31st following, but In no case less than 

one-fourth of the annual fee, 

“(83 A11 fees received by the State from 

licenses issued under thfs Act shall be made avail- 
Honorable George H. Sheppard, page 2 o-5537 

able to the Railroad Commission for use in paying 

the legitimate expenses incurred in adminietering 

and enforcing the provisions of this Act, and for 

no other purpose; provided, however, that any excess funds remaining a,t the end of each two-year 

period shall go to the General Fund." 

It is patent that before any such sums are available to 

the Commission the same must be appropriated by an Actof the 

Legislature. Article 8, Section 6, Texas Constitution; Oninlon 

No. O-700. 

The pertinent provisions of the departmental appropriation bill follows: 

"242. 

"243. 

"244. 

"245. 

"246 o 

"247. 

"248. 

“249. 

"250. 

"251. 

"252. 

"253. 

"254. 

"255. 

"256. 

“257 0 

“2gEi y 

“259 0 

Commissioner, part salary 

Commissioner, part salary 

Commissioner, part salary 

Director 

Chief Clerk and Accountant 

Stenographer 

Stenographer 

Stenographer 

Chief Valuation Engineer 

Valuation Engineer 

Chief Valuation Accountant 

Chief Examiner 

Senior Accountant 

Senior Accountant 

Senior Accountant: 

Senior Accountant 

1,000 .oo 

1,ooo.oo 

1,ooo.oo 

pg.;; 

1:350:00 

1,,350.00 

1,350.oo 

3,600.oo 

2,400.oo 

3,6OC.O0 

3,600.oo 

2,~00.00 

z: ,, 400 .oo 

‘c , J.-O@ .gr, 

2, ?!OO “00 

Pwt,er 720 .oo 

Total Salaries $TTpFEE 

"Maintenance and Miscellaneous 

Con4ingent Expenses, sheriff!s 

and witness fees, traveling expenses ,, postage, books, station-, 

cry,, telephone, telegraph, file:? 

and oT;her necessary help and experses to be Incun?ed in. the acim~r~istration and enforcement of 

and as contemplated by the provisions of Chapter 16 of the 

General Laws of Texas,, 1925, as 

amonrjed 

"Total Maintenance and I\i;iscellai2,poo .OG 

neous 

"Graand Total, Gas Utilities 

l2,GOO .oo 

. .~- 7 ../~ .~ 

1,000 .oo 

1,000 .oo 

1,ooo.oo 

:,gy; 

1:350:00 

1,,350 .oo 

1,350 -00 

3,600 000 

2,400.OO 

l2,ooo .GO 

12,ooo.c3 
. - 

Honorable George H. Sheppard, page 3 o-5537 

‘1% + * * * 

"Subject to the limitations set forth in the 

provisions appearing at the end of this Act, the above listed appropriations for the Gas Utilities 

Division are hereby appropriated out of and are to 

be paid only from the proceeds of the tax of onefourth of one par cent of the gross income of gas 

utilities, imposed by Article 6060, Revised Civil 

Statutes, and any amendments thereto, Any surplus 

remaining out of sard receipts at the end of any 

fiscal year, after paying salaries and other expenses as above specifically appropriated, shall be 

finally released in the General Fund. 

"All fees received by the Railroad Commission 

from licenses issued under Chapter 2 (House Bill 792) 

Act of the 46th Legislature, during each of the 

fiscal years beginning September 1, 1943, and September 1, 1944, or so much thereof as may be necessary, 

are hereby appropriated to the Railroad Commission 

for use in administerirg and enforcing the provisions of said Act, as itemized herein only, includin the payment of salaries, travel, supplies, equipment maintenance and all other necessary expenses. 

Provided that this appropriation shall be subject 

to the limitations set forth in the provisions appearing at the end of this Act. Any.unexpended 

funds remaining in the Liquifled Petroleum Gas Fund 

at the close of each fiscal year shall revs? ,to the 

General Revenue Fund." 

While the Legrslature gave It no heading as i.t did 

other sections of the appropriations for the Raikoad Commission 

such as "Main Office Division," 

and "Oil and Gas Division," 

"Motor Tran?;po:rtation Division, ' 

it is apparent tha,t the foregoing 

itemization,, begin:ni.rg with item 242 and endin,g ,iJ-i,th iem 259, 

is intended as the appropriatfon for t,he Gas Utflities Division. 

The nex,t succeeding paragraph quoted ii'oove specifies 

that ali of tke !' above listed appropriatrons for the 3as Utilit.Ies 

Division are hereb$y appropriated out of and are ,to be paid only 

from the proceeds of the tax of one-fourt'h of one per cent of the 

gross income of gas utilities, imposed by Articie 6060,, Revised 

Cfvil Statutes , and any amendments thereto,'! It follok's that 

none of the items there listed can be used for a purpose other 

than administering the provisions of the Act o,f the Third Called 

Session of the 31st Legislature, 1920, p. 18, Chapter 14; as amended by the Act, of 1937, 45th Legislature, E,E, 1017; as 

amended by the Act of 1939, 46.bh Legislature, page 501. See 
. . 

Honorable George H. Sheppard, page 4 O-5537 

Article 6066, V.A.C.S., and Opinions No. O-700 and O-3068 of 

this department. 

Your problem is the meaning of 

ized herein only" in the last paragraph 

quoted above. 

We note that this paragraph is 

the language "as itemof the appropriation bill 

substantially identical . , ,- with a paragraph in the last preceding aeparcmensal appropriation bill with the exception of the language 'as itemized herein 

0nly.l' 

3ee v, 

1 of the Acts of the 47th Legislature, 

Regular Session, 19 1, at page 1274. We also note that the sense 

of the sentence with the phrase added apparently is "all fees 

received by the Railroad Commission (under Article 6053a, V.A.C.3.) 

are hereby appropriated to the Railroad Commission for use in 

administering and enforcing the provisions of said Act, including 

the payment of salaries, travel, supplies, equipment, maintenance 

and all other necessary expenses but only as itemized in this 

appropriation bill," 

NO itemization is found. Does this mean that no appropriation of the fund is made? If so, what purpose can the Legislature have had in enacting the' rider? 

In our opinion, the language of the rider is subject to 

two constructions. It may mean that only the amounts itemized 

are appropriated, in which event, of course, there Is no appropriation made. Or it may mean that the fees are appropriated in 

lump sum for administering the act, such expenditures from the 

appropriation to be llmited to the purposes and amounts indicated 

in such items as the Legislature might provide. In the first 

case, the words 'as itemized herein" are regarded as components 

of the appropriation itself; in the second, as words of limltation, controlling the expenditure of the kmp sum appropriation, 

Given the second construction, ,the failure to provide items indicates a legislative purpose not to limit the expenditure of the 

lump sum appropriation, but to allow its expenX?u:re in the discretion of the aCommIssion for exptinses involved in administering 

the law. 

We are persuaded that the second is the correct cor.stn,ction. Thus interpreted, the rider has meaning;.given ,the first 

construction, it is nugatory and no reason can be assigned why 

the Legislature should have incorporated it in the bill. 

You are t~herefore advised that the rider appropriates 

the described fees in lump sum for defraying expenses of administering the Act mentioned therein. 
. - 

Honorable George H. Sheppard, page 5 o-5537 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

By s/Jas. D. Sullen 

Jas. D. Srmxllen 

Assistant 

JD3:EP:wc 

APPROVED SEP 10, 1943 

s/Gerald C. Mann 

ATTORNEY GENERAL OF TEXAS 

This Opinion Considered And Approved In Limited Conference