THEAIT~RNEY GENERAL 

OFTEXAS 

Honorable Geo. H. Sheppard 

Comptrollerof Public Accounts 

Austin, Texas 

Dear Mr. Sheppard: Opinion No. O-5044 

Re: Payment of "pre-session" employees of 48th Legislature. 

Your letter of January 20, 1943, is quoted below: 

"There has been presented to this department for payment a pay roll for pre-session employees of the Forty-eighth Legislature. Services for this pay roll were incurred prior to 

the time the Forty-eighth Legislature convened. 

"Am I authorized to issue warrant in payment of such pay roll against funds appropriated 

for contingent expenses of the Forty-eighth Legislature? 

"The Forty-seventh Legislature, by resolution, provided for a certain number of days in 

which employees of the Forty-seventh Legislature 

were to complete certain post-session work, but 

apparently the number of days provided for in 

the resolution were insufficient for the employees 

to complete the work. 

"Am I authorized to issue warrant 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-seventh Legislature? 

"Can the Forty-eighth Legislature, by resolution, authorize the payment of this excess service out of the contingent expense account of 

the Forty-eighth Legislature? 

Article 3, Section 44, of the Texas Constitution provides: 

"The Legislature shall provide by law for 
Honorable 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 compensation to 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 of money 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 Incurred without pre-existing authority of 

law. Therefore, unless the services for which compensation is 

proposed to be made were rendered pursuant to a law authorizing 

the employment of persons to render them, Section 44 of Article 

We find no authorization for the employment of such 

persons to render the servI.ces for which the payroll is submitted, antedating the rendition thereof. The services all 

appear to have been rendered prior to the session of the 48th 

Legislature. The 47th Legislature made the usual appropriations for contingent expenses of its session. The Senate, on 

July 3, 1941, passed a resolution (S.R. No. 185) which provided in part: 

"He it resolved by the Senate, that the 

following named employees be retained for the 

number of days, and. at the per diem salary, 

specified in each case to perform such duties 

as may be required of them in connection with 

the business of the State, viz:" 

There followed a detailed list of the employees to be 

retained, the number of days for which they were to be retained, 

and the per diem salary to be paid each employee. Payment 

therefor was 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 for which 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. "The expression of the one operates to exclude the 

other." To define the authority to employ is to limit the 

power to employ to the limits prescribed by its definition. 

You have informed us that the authority conferred by 

this resolution was 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 services rendered for 

days in excess of the number of days for which the Resolution 

authorized such employees to be engaged. Employment of such 

persons for periods in excess of those authorized by the 

Resolution was without authority and imposed no legal obligation upon the State. Hence, Article 3, Section 44, prohtbits 

the Legislature from paying for such services by 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 Committee By s/BWB Chairman