THEATTORNEYGENERAL

OF..EXAS

GFRALD C. MANN AUSTIN ~&TEXAS

Honorable George H. Sheppard Comptroller of PublicAccounts Austin, Texas

Dear Sir: OpinionNo. O-5537 Re: Constructionof appropriation for Gas UtilitiesDivision 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 appropriationbill (Acts 1943, 48th Leg., R.S., Ch. 400,Vernon's Texas Session Law Service, pps. 885-1029) as it pertains to the license fees receivedby 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 liquefiedpetroleum 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 liquefiedpetroleumgas, or engaged Pn the business of transporting or dfspensing liquefied petroleumgas, and/or sale and/or Mstaliation of any apparaks for the storage and/or dispersing of liquefiedpetroleumgas, shall at the time of i,isuance of such license,and annually thereafte: on orbet,ween

September 1st and September 15th of each calendar year pay to the Railroad Commission a special fee of Twenty-fiveDollars ($25)0 If the licensehere provided for is issued after the month of September of any year, the fee shallbe 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 receivedby the State from licenses issuedunder thfsAct shallbe made avail-Honorable GeorgeH. 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 thisAct, and for no other purpose; provided, however, that any excess funds remaininga,tthe 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 samemust be appropriatedby an Actof the Legislature. Article 8, Section 6, Texas Constitution;Oninlon No. O-700.

The pertinentprovisions of the departmental appropriation bill follows:

"242. "243. "244. "245. "246 o "247. "248.

“249. "250. "251. "252. "253. "254. "255. "256.

“257 0

“2gEiy

“259 0 Commissioner,part salary Commissioner,part salary Commissioner,part salary Director Chief Clerk and Accountant Stenographer Stenographer Stenographer ChiefValuation Engineer Valuation Engineer ChiefValuation 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
"Maintenanceand 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 contemplatedby the provisions of Chapter 16 of the General Laws of Texas,,1925, as amonrjed "TotalMaintenance 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, imposedby 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 specificallyappropriated, shall be finally released in the General Fund.
"All fees received by the Railroad Commission from licenses issuedunder Chapter 2 (HouseBill 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 administerirgand enforcing the provisions of saidAct, as itemizedherein 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 provisionsappearing at the end of thisAct. Any.unexpended funds remaining in the Liquifled PetroleumGas Fund at the close of each fiscal year shall revs? ,tothe General Revenue Fund."
While the Legrslaturegave It no heading as i.t did other sections of theappropriations for the Raikoad Commission such as "Main Office Division," and "Oiland Gas Division," "MotorTran?;po:rtation Division,' it is apparent tha,tthe 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,tsucceedingparagraphquoted 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, imposedby 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,fthe 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 OpinionsNo. 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 appropriationbill

substantially identical

. , ,- with a paragraph in the last preceding aeparcmensalappropriation 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 sentencewith the phrase added apparently is "all fees receivedby the Railroad Commission (underArticle 6053a, V.A.C.3.) are hereby appropriated to the Railroad Commission for use in administeringand enforcing the provisions of saidAct, including the payment of salaries, travel, supplies, equipment,maintenance and all other necessary expensesbut only as itemized in this appropriationbill,"

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. Itmay mean that only the amounts itemized are appropriated, in which event, of course, there Is no appropriationmade. 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 Legislaturemight 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 expenditureof the kmp sum appropriation, Given the second construction, ,thefailure to provide items indicates a legislativepurpose not to limit the expenditureof 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 ,thefirst construction, it is nugatory and no reason can be assignedwhy 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 ConsideredAnd Approved In Limited Conference