Hon. J. E. McDonald oplnlon Ho. TV-923.

Co8missloner

of Agriculture State Land Office Bldg. Re: Constructionof SecAuatln, Texas tlon 11, House Bill

Deer Sir: ~;~~~~"a 51st Leg-

. Reference Is made to your request for an oplnIon es to the evellebllltyof the fees collectedby the Comnlssloner

of AgricultureIn accordancewith the provlslous of Section 11, House Bill lio.35, Acts 51et Legislature,

page 112'7,

forthe purposes stated therein. Section 1 of House Bill No.35 reeds es follows:
"There Is hebeby establishedin this State the followingprocedure for vegetable plant certlflcetlon:
."Thepurpose of the vegetableplant certification

law Is to provide for the purchaser of vegetableplants the benefit of honest end reliable opinion of the freedom from such dlseeties end fungus infection es can be determinedby field %nspectlon prior to preparing the plani% for shipment to insure in so far es possible,proper handllng end peckeglng the plants certified.
"The Commlsslonerof Agriculture1s chargedwith the duties of preserlblng sueh rules and regulationses ere necessery to the enforcementof the law. The eppolhtmeut of qualified lnepectors,collectionof fees, Issuance of tags end the ectuel enforcementof the law.
"The flrm or Individual holding such license end meeting the requirementof inspectionare issued such certification StampS or tags es may be deemed necessary, such stamps or tags to be affixed tt containers Cafiying the certifiedplants.Hon. J. E. McDonald,page 2 (V-923)

Sections 10 and 11, read, respectively, as follows:
"Sec. 10. Inspectionfees shall be es follows for tomato, cabbage,broccoli, collards, cauliflower, pepper and onions:

"At the time of applying for the certlflcatlona minimum fee of Five Dollars ($5) shall be paid, and for each acre over five (5) acres the fee shall be not less than twenty-fivecents (25#) nor more than One Dollar ($1); this fee to be paid et the time of application. The certlfleatlon tag or stamp to be affixed to the contelner shell be ten cents (log)per thousand plants contained.
"Sec. 11. (1) Applicationfor certlflcetlon of sweet potato plants shall be made ~prlor

to harvestingtime the preceding season. The fee to be paid at the time the application1s made for this Inspection shall be a mlnlmum of Five Dollars ($5) and for acreage of more than five (5) acres the added fee of not less than twenty-fivecents iz?icEe shall be paid er acre nor more than One Dollar ($1)

All plants lifted or shipped shall be pa&caged ln bundles of one hundred (100)plants and ~8label or tag shell be affixed to each bundle. The price of labels or tags shall not be less than *.
One cent f

14) per label nor more than three cents (3# per label.

“(3) Out of the feks collectedunder. this Act, the Chief of the I&rkets and Warehouse Division of the Departmentof Agrlcnlture shall be paid In addition to the amountHon. J. B. MaDonald, page 3 (V-93)

of his salary in the general approprlation bill In the sum of Four Hundred and Eighty Dollars ($4&o)per annum;which amount Is hereby appropriatedfor said purpose.

" *) , (HumberIngof paragraphsaddParagraph'3 of Seotlon 11 olearly and deflnltely makes a speclflo appropriation of $480 out of the fees collected for the purpose of supplementing the annual salary of the Chief of the Markets and Warehouse DlwlSiOU, as fixed in the general appropriation bill for the ourrent biennium. Paragraph 2 of Section'11does not aontaln the words "whloh amount is hereby appropriated for sald purpose" found In paragraph3. Therefore,we must determine from the entire Act whether it was the intent and purpose of the Legislature to appropriatethe balance of the fees oolleotedby the Department of A@- oultura for the purposesmentioned In paragraph 2.

We quote from AttorneyGeneral's oplnlon Woo. V-887, as follows:

"Se&ion 6, ArtloleVIII of--theConstitution of Texas, in part,,eads: i "%o money shall bedrawu from the Treasury, but in pursuanae of speoifio appropriationsmade by law; nor shall any approprlatlonof money be made for a longer period than two years.'

"In the case of Pickle v. State Co - &Justice Gaines, :&%!$!oFEhs troller 91 Tex. 484, Court, said:
"'It is clear that an appropriation need not .bemade In the general approprlatioa bill. It 1s also true that no speoiSic words are neuessary In order to q akm any appropriation;

and It may be conoeded,~ that an appropriation may be made by lmplication when the language employed leads to the belief that such was the intent of the Legislature.'"

In 39 Texas Jurisprudence205, Statutes., SeOtimJ. E. McDonald.page 4 (V-923)

it Is said:

"It Is elementarythat a statute will be oonstrued in such manner as to make It effeotlve - that i.s, enforceable and operative - if it is falrlg susoeptible of suoh Interpretation. Thus where two conatruotions

might reasonably

be given a statute, of whiob one will effectuate the leglslatlveIntent and purpose and make the act operative, while the other will defeat such Intent and purpose and render it inoperative, the former oon- 'struotton

will be adopted." This law was enacted for the protectionof purchasers of vegetableplants therein named by assuring them as far as possible that the plants are apparently free front

diseases and pests "as determinedfrom,field inspeotionprior to the lifting of the plants for sale or 8hipment.v It is a matter of common knowledgethat the production of these plants Is a large and growing industry in oertain looaliflesof thie State. It is also a~~well

known faot that many stateshave eneoted statutesprohibitingthe Importation or sale of such plants grown In 'pexas, for the reason that this State has not heretoforehad a law provfdlngfor their proper certlfloation. By the enactmentof this law, the LegislatureIntended to not only give the producer of such plants the protectiontherein provided,but to give the producer nev fields in which to sell them.

If the Legislaturehas failed to make an appropriation of the fees collected for the purposes stated In paragraph 2, Section 11, It necessarilyfollows that the purposes of the law have felled. The appropriation ape: oifioallgmade by paragraph 3, Section 11, also fails, for the reasons no certifioationfees or fees for tags, stamps: or labels will be oollected. You are not euthorlzedto issue certlfloatlontags, stamps, or labels unless there has been a "field inapeotion~prior to the lifting of the plsnts for sale." Suoh tnsyieations cannot be made vithout qualified lnspeotorsto make them. you cannot obtain such lnspeotorsunless funds have been made avallable to pay them for their servloes. Therefore,if the Legislaturehasp

faLled to appropriatethen fees you are authorizedto,oollect and expend for the purposes stated in the law, the law must remain lneffeotlve and lnoperatlvefrom Oatober 5, 19@, until such the as the*

Ron. J. E. McDonald,page 5 (v+23)

. . : Legislatureappropriatessuch fees for the purpose of enfortzing

its provisions.
We do not believe the Legislature intended swh a result. We think the Legislature Intendedto make the law operativeand enforaeablefrcm Its effectivedate and to make an appropriationof all fees oolleotedfor the pnrposes therein stated. and did make suoh appropriation. S&h a ooiastrizotlon Is reasonable and neither violates the ~provisiona

of Seotloa 6, ArtioleVIII of the Constitution of Texas, nor any other provision of that document

. Furthermore,the Legislatureevidentlybelieved it had appropriatedall the fees colleotedby the languageused in paragraph 2, Section 11, or It would not have in plain languagemade the appropriations in paragraph3 of the same seotlon. Otherwise,it would be apparentthat the Legislaturehad intentionally done a uselessthing,

by appropriating

fees whioh it knew oould not~be oolleotedwithout an appropriation to enable you to oolleat them.

Therefore, It is our opinion that Seotion 11 of~~F@tie~Blll

Ro.35, Acts 51st Legislature,Chapter 581, pa e.1327,~~o'onsfltutes a valid~approprlatlon of the fees ahfoh the Commissionerof Agrioultureis authorizedto oolleot thereunder,for the purposea therein stated, for a.periodof years, beginning Ootober 5 199, beoomeseffeotlve,and ending October 4, 1951. the day it

SUMMARY
House Bill Ro.35, Aots 51st Legisla- .ture,made a valid appropriationof all the fees oolleoted thereunderby the Commissioner of Agriculturefor the purposes stated~ there&n for a period of two years, beginning October 5, 1949, the effeativedate of the Aot,.and ending Ootober 4, 1951. A-G. OpinionsRos. v-887, w-895 and authorities there oited.
Yours very truly, A'Rl'ORRRYCRRRRAL

OFTRXAR

Assistant