THEAIT~RNEY GENERAL OFTEXAS

Honorable Geo. H. Sheppard Comptrollerof PublicAccounts Austin, Texas Dear Mr. Sheppard: Opinion No. O-5044
Re: Payment of "pre-session"employees of 48thLegislature.
Your letter of January 20, 1943, is quoted below: "Therehas been presented to this department for payment a pay roll for pre-session employees of the Forty-eighthLegislature. Services for this pay rollwere incurredprior to the time the Forty-eighthLegislature convened.
"Am I authorized to issuewarrant in payment of suchpay roll against funds appropriated for contingent expenses of the Forty-eighthLegislature? "TheForty-seventh Legislature,by resolution, provided for a certain number of days in which employees of the Forty-seventh Legislature were to complete certainpost-sessionwork, but apparently the number of days provided for in the resolutionwere insufficient for the employees to complete thework.
"Am I authorized to issuewarrant for payment of a pay roll providing for compensation for a number of days in excess of the number allowed by resolution by the Forty-seventhLegislature? "Canthe Forty-eighth Legislature,by resolution, authorize the payment of this excess service out of the contingent expenseaccount of the Forty-eighth Legislature? Article 3, Section 44, of the Texas Constitutionprovides: "TheLegislature shallprovide by law forHonorable Geo. H. Sheppard, page 2 O-5044

the compensation of all officers, servants, agents and public contractors,not provided for in this Constituion,but shall not grant extra compensationto any officer,agent, servant, or public contractors,after such public service shall have been performed or contract entered into, for the performance of the same; nor grant, by appropriation or otherwfse,any amount ofmoney out of the Treasury of the State, to any individual,on a claim,real or pretended,when the same shall not have been provided for by pre-existing law; nor employ any one in the name of the State, unless authorized by pre-existing law." Under this section of the Constitution,the Legislature can not pay claims Incurredwithout pre-existingauthority of law. Therefore, unless the services forwhich compensation is proposed to be made were rendered pursuant to a law authorizing the employment of persons to render them, Section 44 ofArticle

We find no authorization for the employment of such persons to render the servI.ces forwhich the payroll is submitted, antedating the rendition thereof. The servicesall appear to have been rendered prior to the session of the 48th Legislature. The 47th Legislaturemade the usual appropriations for contingent expenses of its session. The Senate, on July 3, 1941, passed a resolution (S.R.No. 185)which provided inpart:

"He itresolved by the Senate, that the followingnamed employeesbe retained for the number of days, and. at the per diem salary, specified in each case to perform suchduties as may be required of them in connectionwith the business of the State, viz:" There followed a detailed list of the employees to be retained, the number of days for which theywere to be retained, and the per diem salary to be paid each employee. Payment thereforwas directed to be made out of the contingent expense fund of the 47th Legislature.- -

Honorable Geo. H. Sheppard,page 3 O-5044

The listing of employees to be retained excludes the idea that others than those listed might be retained. The listing of the number of days forwhich the specified employees might be employed excludes the idea that such employees might be hired for a longer period of time. And the specification of the amount of salary to be paid each listed employee excludes the idea of authority to contract to pay a greater amount. "Theexpression of the one operates to exclude the other." To define the authority to employ is to limit the power to employ to the limitsprescribedby itsdefinition.

You have informedus that the authority conferredby this resolutionwas exercised in full, and payment has already been made to the full extent of the authority given by the Resolution. The present payroll is for servicesrendered for days in excess of the number of days forwhich the Resolution authorized such employees to be engaged. Employment of such persons for periods in excess of those authorizedby the Resolution was without authority and imposedno legal obligation upon the State. Hence, Article 3, Section 44, prohtbits the Legislature from paying for such servicesby appropriation or otherwise. Very truly yours ATTORNEY GENERAL OF TEXAS
By s/R. W. Fairchild R. W, Fairchild Assistant
RWF-RR-WC

APPROVED JAN 29, 1943 s/Gerald C. Mann ATTORNEY GENERAL OF TEXAS Approved Opinion CommitteeBy s/BWB Chairman