Hon. Harry P. Burleigh Opinion No. MY1141

Executive Director Water Development Board Re: Construction of Article P.O. Box 12386, Capitol Station 6252-lla,V.C.S., reAustin, Texae 78711 lating to programs for training.and education Hon. James U. Cross of State administrators Executive Director and employees. Texan Parks L Wildlife Dept. John H. Beagan Building Auatin, Texar 70701

Gentlemen.:

Your requests for an opinion on the above subject matter ask the following questions regarding Section 16 of Article V of the current General AppropriationAct:

"1. Does Article V, Section 16 **of** the 197.1 General AppropriationAct (quotedabove) require the approval of the Governqr for the expenditure of state funds for any program of education, or does it'apply to other matters such as,membership in, or noneducational activities sponsored by, professional groups and organizations?

**: “** **2.** If Article V, Section 16 of the 1971 General Appropriation Act does 80 apply to educational and training programs,would it nevertheless be necessary to obtain the Governor's approval of specific items of expenditure in addition to his approval of the regulations promulgated pursuant to the State Employees Training Act of 19693

-5552-Hon. Harry **P.** Burleigh, Bon. Jamee’U..Croaa,~page **2. j&4-1141)** 

**“ 3.**  Is the Comptroller authorised.to approvepayment for dues and fees for this Department incident to joining or participating in an organizationwhen approv~al has been obtained from the Governor previously
as requiredby Section 16, page V-42 of the AppropriationsBill even though the, Governor's approvalwas not additionally obtainedprior to to the beginning of the normalmembership period of such organization?"

Sections 2, 3, 4 and 5 of Senate Bill 653, Acts of the 61st Legislature, Regular Session, 1969, Cahpter 283, page 849 (aodifiedas Art. 6252-lla, V.C.S.) provides:

"Sec. **2.** The Legislature finds that. effective state administration is materially aidedby program for the training and education of state administrators and employees and that public moneys spent for these pro**grams** serve an important public purpose.

"Sec. 3.. A state department, instituspropriate by
or agency, it may expend public funds to piy the salary, tuition anU other fees, travel and living expenses, training stipend, trainlng materials costs and other necessary expenses **of** th 1natructor, student, and th zipant Tn the training or educatioipzig:z. A department, institution, or agencymay enter into an agreementwith another state, local, or federal department, institution, or agency, including .astate-supported college or university, to present a training oreducat.ionalprogram for its administrators and employees or to join in.preeenting such a program. Among the purposes,that may be served by these training.and educational programs are preparation to deal with new technological and legal developments, development **of** additional work capabilities, and increasing the level of competence.

**-5553-**Hon. liarry**P.** Burleigh, Hon. James U. Cross, page 3. (M-1141)

***Sec. 4.**  Public funds may be expended **by** the department, institution, **or** agency for the training or education of an administrator
or employee onlywhere the training or education is related to the current or prospective duty assignment of the administrator or employee Where.the trainins or education is so related. the department, institution, or agencymay ~' make the administrator'sor employee's sent duty assignment, in part or inwho e, f=- attendance at designated trainina or education. programs. -

no public funds shallbe expended under such regulation, until the regulation is approved inwriting by the governor." (Emphasisadded.)

We note that the foregoingprovisionsdo not contain
an appropriationbut.that they do constitute pre-existing law for the appropriation and expenditure of moneys for the purposes contained in SectPon 16 of ArticleV of the currentGeneral AppropriationAct. The following restrictions on the expenditures of funds appropriated in the General AppropriationAct

**are** contained in,its Section 16 of Article V; they read as follows:

"Restrictionon Registration Fees. None

of'the funds appropriated in this Act shall be used to pay dues, registration fees or any kind of similar expense incurred in joining
or participating in any type or organization, aesbciation or society-withoutpriorwritten Droval of the Governor. Such requests and action taken shallbe filed with the LeaislativeBudget Board." (Emphasisadded.i

**-5554-**Xon. Harry **P.** Burleigh, Hon. James U. Cross, page 4. (M-1141)

We construe this rider in the General Appropriatior. Bill to have the effect **of** giving a continuingarbitraryveto power to the Governor over all expenditures for dues, registration, or other similar expenses related to educational and training programs authorizedby Article 6252-lla. This, as hereinafter explained, the Legislature couldnot legally acecompliah under the Constitution and laws of this state. It could, however, legallyprovide that each statement oi ex;;enditure be filed as a matter of recordwith the Legislative Sadget Board for informational and budgetarypurposes.

The rider, insofar as the Governor',6 approval is concerned,delegates to him the arbitrarypower and unlimitrd discretionarydecision as to whether a statedepartment or agetzq
can provide training and education for its administrators and employees,with public funds duly appropriatedfor such purposes includingdues, registration fees, or similar expenses. We must therefore hold that the rider, to the extent of requizi::, the Governor's approval, is invalid and void. Rules of construction applicable to statutes generally apply to appropriation bills, which are to be construed in connectionwith other legislation concerning related matters andwith relevant constitutionalprovirions. 81 C.J.S; 1225-1226,States, Sec. 166, and authorities there cited.

The office of Governor does not exist by virtue of the common law but is a creature of state constitutions. The Governor has no undefined authority:he has no authoritynot committed to him by the Constitution and statutes. Calvert v. Adams, 388 S.W.Zd 742 (Tex.Civ.App.1965,rev. on other grds., 396.W.Zd. 948).

The only authority of the Governor to exercise a substantiveveto power over legislationor items of approprii.- tion is clearly set out in Article IV, Section 14, of the Constitution of Texas. Where the Constitutionhas spokn and preempted thismatter, the Legislature is without power either to add to br detract from this constitutional functlcn. In exercising that veto power, the Governor is exercising ii legislativeand not an executive or judicial function. He has only such power as the Constitution confers upon him; he cannot disapprove **of,** certain portions of a bill which are not items of appropriation, and approve the remainder. E'LAlmor

v. Lane,:104 Tax. 499, 140 S.W. 405 (1911);Annotation, =R. 640,d cited cases; 16 C.J.S. 617, Const. Law. Sec. 138, n. $1; 81 C.J.S. 1220, States, Sec. 164, n. 55; and Attorney Ger~cr~l OpinionNo. V-119.6(1951).

-5555-. 4

Ron. 

### Harry P. Butleigh, Bon. Jamer U. Cross, page 5. (M-1141)



### Aside fromthe constitutionalaubstentiveveto of the Governor granted'inArticle IV, Section l4;there is no other authorityprovided for him to have a continuingaubstantive veto item over the expenditures

### of appropriated items, such as registration fees, dues, or any other items. The substantive and discretionary decision to expend appropriated funds for these appropriatedpurposes is a matter **reserved** by law to the various state departments and agencies, and an attemptby the Legislature to delegate to the Governor the power to disapprove or 'vetosuch expenditures and at his own arbitrarydiscretion, is illegal and.unconstitutional,
as hereinafter shown:

It iswell settled in this State that a rider attached to a general appropriationbill cannot,repeal,mogify, o:.amend
an existing general law. State'v. Steele,'57Tex..203 (1082); Linden v. Fin1 , 92 Tex.'a51 49 

### W 5?0 (1899);

### Moore v. Sheppard, 144 < 537,. 192 S:W.tidS;59(1946).

This does not mean thata general appropriationbill may not contain general provisions and details limiting and restricting~theus8 of'ftinds tlxmein appropriated.

if the provisions are necessarily connectedwith and incidental to the appropriation and use of funds and if they do not conflict with or amount to general legislation. Conley v. Daughters of the Republic,,106 Tex. 80, 156 S.W. 191 (1913)

. It is noted, however. that xn that case the aueetions nresentedwere not the eamk'aa are here presented &d the court did noterule on the ieeuee'withwhich WC are naw confronted. Since the rider delegates to the Governor a substantive, discretionaryveto, the rider amounts, in our opinion, to general legislation in the appropriationbi.11and is thus unconstitutional and in violation of Article III, Section 35, Constitution.ofTexas. See Attorney General Opinion Nos. V-1253 (1951);WW-294 (1957), and W-310 (1957).

We~findno Texas court decisiondirectly on this point. However,.the Supreme Court of Oklahoma has based its decision in two cas8s aquarily on the proposition that the Legislature may not constitutionally enact a law to require the Gov8mor'a subsequent discretionary approval or disapproval to be obtainad for the.expenditure of funds authorizedby an appropriationby the Legislature. The Court held that disapproval

### by the Governor was tantamount to reduction of an

-5556-Hon. liarry P. Burleigh, Hon. &es U. Cross,page 6. (M-114;j

appropriationwhich was prohibited by its State.constitution. Our Texas Conatitution contains the same prohibitions in slightly different wording.1 The Oklahoma Court held:

*Had the Governor attempted to reduce the amount of the appropriation.madefor the
use of the Corporation Commission,~hisaction .wouldhave been ineffectiveunder the provi- .sionsof our Constitution. The Legislature iswithout authority of law to confer upon the Governorthe power to reducethe tiount of an item of an appropriation. It .cannot authorizehim to do indirectlywliat he is prohibitedby the.Constitution ,fron doi.ng directly."

1Our Texas Constitution, Art.~IV,Sec. 14, reads, in its relevant portion:
*

...If any bill presented to the Governor contains several items of appropriationhe may object to one or more of such items;and approve the other portion of the bill...."

The related provisions of the Constitutionof Oklahoma upon which ~theSupreme Court of that State based its decisionswere:
(1) Art. 5, Sec. 56, which in hits relevant portion read, "The general'appropriationbill shall embrace nothing but appropriationsfor the expensee of the executive, legislative,and judicial departments of the State,

. ...". (27, p.za 617, 6201 and, (2) Art. 6, Sec. 12,which in its relevant part read, "Everybill passed by the Legislature, making appropriations~.of money embracing distinct items, shall, before itbecomes a law, be presented to the Governor; if he disapproves such bill, or any item, or appropriationtherein contained,he shall communicate suchdisapproval, with his reasons therefor, to the house in which the'bfll shall have originated,but all items not disapproved shall have the force and effect of law according to the originalprovisi.ons cf' the bill."Hon. Harry P. Burleigh, **Hon. J(UDPI,**  **V. wLYlr,**  **=-.- ._** 

State **v. Carter,**  **27** P.2d 617 (Okla.Sup.19,331(at p. 626). Fhi h laingwas followed and reaffirmed in State
v. Carter, l.0:

P(I2d518 (1940)by the same Court. -

In effect,-givingthe Governor of Texas a statutory authorization to approve or disapprove an expenditurewhich had already beep, appropriatedwould be a secondveto privilege. Our Texas Constitution, like the Constitutionof Oklahoma, prohibits the Governor fromhaving more than the one veto provided for .inArticle IV, Section 14, of the Texas Constitution.

We are aware that the decisions of the courts of last resort of some Stateshave made declarationsthat their state legislaturemight constitutionally subject the expenditure or'payment of appropriatedmoney to the approval of the Governor or other state officerwho is otherwisewithout oopstitutional authority to approve or disapproveexpenditures. 42 Am.Jur. 752, Public Funds, Sec. 50 (copyri'ht'1942), and 91 A.L.R. 1511-1514. Hwever, we have carefu 9ly considered all the cases cited in these texts, and findth t none of them base their decision on this proposition of law. 9 In view of

;2Rxamplee are: (1)State v. State Board of Finance, 367 P.2d 925 (N.Mex.Sup.1961).At p. 929 the statement is made that the executivemay-control expenditure of appropriated funds,but the holding in the
case is that the "

...deIegaticnrust fail because
no standards have been provided..\." (p.932). (2) In Sellersv. Frohmiiler, 24 P.2d 666U4riz. Sup. 1933).approval of the authorityis stated at p. 668, but then

decision of .thecourt is grounded
on the proposition that the authoritygrantedby statute was unconstitutionalbecause it was genera1 legislation in the general appropriationbill (p. 669). (3)In People v. Tremaine, 168N.E. 817 (Ct.of App., N.Y. 1929, Ct. of last resort) the Court held that statutory appointmentof membere of the-legislature to a committeewhich had certain approval powers over expenditure of appropriated funds,was void.
(Footnote2 continued on followingpage.)

-5558-hon.

### Harry P. Burleigh, lion. JamesU. Cross, page (1. (M-rlili

a clear decision 'ofour of the Oklahoma Supreme

. _ Texas Courts3 and the square hol.Xngs Court in construing its state cocstia~

. ._ tutional provisions so similar to those of our own State, ac.d in the absence of any authority to the contrary, we fo1~tv.TtCdecisions of Oklahcanaand theweight of authority. As state3 in 42 Am.Jur. 752, supra,with referenceto various attrmpt; to subject the expenditure of appropriatedmoney to the apprc val of the governor or other officer, "inmost =ases...tc: courts have held them invalid...".

In.answer to your firstquestion, it is our ti;Liiioz that Section 16 of Article V, of the current General Approprii tion Act is illegal and invalid to the.ext8n.t that it requires the Governor's approval for expenditure of state funds for ani program requiring the use of funds appropriated'fordues tration fees or membership **fees.** The Governor of Texas l!~a~"~~'

(Footnote 2 continued) This **case** furtherholds that those members of the Legislature hold a separateoffice of appoin"Jnent by the Legislaturewhich conflictswith their office.as legislatorsbecause it'is ehblly unrelated to their legislativeduties. The effect of the Governor's membership on the committee was not considered in this context,but we do not discernwhy he alsowas not given certain duties in irreconciliable conflict with his duties as governor. On this ground his appointment likewisewould be unconstitutional'. The concurringopinion (p. 82'5) maket further declarations to the effect that tha Govti;rncr would act as an administrativeofficer (duties) ;ZI conflict with the duties of the state adxiniatrative officers to whom the fundswere appropriated!
3 We~consider several of the statements in Falmoz;-

v. Lane, 104 Tex. **499, 140**  **S.W. 405,**  supra, par- '-1~ at pp. 411-412,as strong declarations in support of our position,but the holding in that case was on anotherground.

**-5559-**Hon. liarry p. eutlafgh, non. JunttlU. ~dro8av page 9 (M-1141)

disoretion to disapprove or veto the requested expenditure asked forby a State agency under Section 16 of ArticleV of the currentGeneral AppropriationAct; nor does this Section 16 apply to the expenditure

### of appropriated funds for educational and trainingprograms not requiring the payment of dues, registration fees, or similar expense.

In view 

### of our answer to your firstquestion, your second question in effect becomes moot. Since the Governor has no authority to disapprove the expenditures in question in Section 16 of Article V of the currentAppropriation Bill, it is only necessary under that rider to fileyour expense statementwith the Legislative Budget Board for its information and subsequentbudgetary considerations.

In answer to the third question, our opinion is that the Comptroller is authorized 

### to approve payment for dues and fees

### for a State Department incident to joining oreparticipating in'an organieationwithout the above discussed Governor's approval contemplated by Section 16 of Article V of the General AppropriationBill, and without regard towhether the expenditure is made after the beginning of the normal membershipperiod of such organizition. Section 16 neither expressesnor necessarily implies that the membership must occur or that the expendituremust be made prior to the beginning of the organization's membership period; nor do we find any other law which makes this requirement.

The Comptroller's duty is ministerial only, and he ~muetissuehis.warrant in payment of the legal expenditure when the claim is made pursuant to the appropriation. Attorney General Opinion No. C-722A (1966). Fulmore v. Lane, 104 Tex. 449, 140 S.W. 405-406 (1911). The approval of the Governor is not required aswe have so held herein, and itmay not be requiredbythe substantive determination to make the expenditures left by the statutes to the sound discretion and judgment of the state. departments and agencies. In this connection, you have stated:

"It is not possible to identify all valueable opportunities

### fdr membership and participation prior to the beginning 6f their current membership period nor to anticipatewhen new ones will occur. If use 

### of appropriated funds under the provisions 

### of Section 16 is to be additionally contingent upon approvalby the

-f&60-

### . .

Bon. Barry 

### P. Bukeigh, Hon. James U. Cross, page 10. (M-11411. *

Governorin 'advance' **of** the beginning

### of the'normalmembership period of the organisation, society, or association, the State **of** Texas vi11 be denied substantialbenefits itwould have'derived from professionalenhancement 

### of our technicians and specialists through their relatfonehipewith the ecientific and ,profeesionalcommunity."

Neither the Governor nor the Comptroller is charged with any duty to oversee, supervise or veto the above determind.. tion 

### to make the expendituresby the etate.departmenteand agencies, andwe must therefore answer your thirdquestion in the affirmative.

SUMMARY ----we- (1) Section 16 .ofArticleV of the current General Appropriation Act insofaras it. requiree~

approvalof the Governor for the expenditure **of** appropriated funds tobe used to pay dues, registration fees, or anykind of similar expense incurred in joiningor participating in any type of organization,association,'
or society, is invalid and void. All,statements of expenditures for these purposes,however, should be filedwith then LegislativeBudget Board for informational and budgetary considerations.
(2) The Comptroller is authorizedto approve payment for dues and fees for a state department or agency incident to joiningor participating in an organizationwithout approval of the Governor as contemplatedby Section 16, Article V, General AppropriationAct, and even though the membership does not occur and the expenditure is not made prior to the beginning of the normalmembership period of such organization.



### C. NARTIN cf Texas

-5561-Hon. Rarry P. Burleiqh, Hon. James U. Cross, paqe'll. (M-1141,

Prepared by Roger Tyler AssistantAttorney General

APPROVXD: OPINION COMMITTEE

Kerns Taylor, Chairman W. E. Allen, Co-Chairman

J. C. Davis Houghton Browlee Bill Campbell Rex White Lynn Shivers

SAMUEL D. MCDANIEL Staff Legal Assistant

ALFRED WALKER Executive Assistant

NOLA WRITE First Assistant

-5562-