Hon. Harry P. Burleigh Opinion No. MY 1141 

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 Appropriation Act: 

"1. Does Article V, Section 16 of the 

197.1 General AppropriationAct (quoted above) 

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 

approve payment for dues and fees for this 

Department incident to joining or participating in an organization when approv~al has 

been obtained from the Governor previously 

as required by Section 16, page V-42 of the 

Appropriations Bill even though the, Governor's 

approval was not additionally obtained prior to 

to the beginning of the normal membership 

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 (aodified as Art. 6252-lla, V.C.S.) provides: 

"Sec. 2. The Legislature finds that. 

effective state administration is materially 

aided by program for the training and education of state administrators and employees 

and that public moneys spent for these programs 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 1 natructor, student, and th 

zipant Tn the training or educatioi pzig:z. 

A department, institution, or agency may enter 

into an agreement with another state, local, or 

federal department, institution, or agency, including .a state-supported college or university, 

to present a training oreducat.ional program 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 only where 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 agency may ~' 

make the administrator's or employee's 

sent duty assignment, in part or in who f=- e,

attendance at designated trainina or education. programs. - 

no public funds shall be expended under such 

regulation, until the regulation is approved 

in writing by the governor." (Emphasis added.) 

We note that the foregoing provisions do not contain 

an appropriation but.that they do constitute pre-existing law 

for the appropriation and expenditure of moneys for the purposes 

contained in SectPon 16 of Article V of the current General 

Appropriation Act. 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: 

"Restriction on 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-without prior written 

Droval of the Governor. Such requests and 

action taken shall be filed with the Leaislative Budget Board." (Emphasis added.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 continuing arbitrary veto 

power to the Governor over all expenditures for dues, registration, or other similar expenses related to educational and 

training programs authorized by Article 6252-lla. This, as 

hereinafter explained, the Legislature could not legally acecompliah under the Constitution and laws of this state. It 

could, however, legally provide that each statement oi ex;;enditure be filed as a matter of record with the Legislative Sadget Board for informational and budgetary purposes. 

The rider, insofar as the Governor',6 approval is 

concerned, delegates to him the arbitrary power and unlimitrd 

discretionary decision as to whether a state department or agetzq 

can provide training and education for its administrators and 

employees, with public funds duly appropriated for such purposes 

including dues, 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 connection with other 

legislation concerning related matters and with relevant constitutional provirions. 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 authority not 

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 

substantive veto power over legislation or items of approprii.- 

tion is clearly set out in Article IV, Section 14, of the 

Constitution of Texas. Where the Constitution has spokn 

and preempted this matter, 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 

legislative and 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 

Opinion No. V-119.6 (1951). 

-5555- 
. 4 

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

Aside fromthe constitutional aubstentive veto of 

the Governor granted'in Article IV, Section l4;there is no 

other authority provided for him to have a continuing aubstantive 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 appropriated purposes is a matter 

reserved by law to the various state departments and agencies, 

and an attempt by the Legislature to delegate to the Governor 

the power to disapprove or 'veto such expenditures and at 

his own arbitrary discretion, is illegal and.unconstitutional, 

as hereinafter shown: 

It is well settled in this State that a rider attached 

to a general appropriation bill cannot,repeal, mogify, o:.amend 

an existing general law. State'v. Steele,'57 Tex..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 appropriation bill 

may not contain general provisions and details limiting and 

restricting ~the us8 of'ftinds tlxmein appropriated. if the provisions are necessarily connected with 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 nresented were not 

the eamk'aa are here presented &d the court did note rule on 

the ieeuee'with which WC are naw confronted. Since the rider 

delegates to the Governor a substantive, discretionary veto, 

the rider amounts, in our opinion, to general legislation in 

the appropriation bi.11 and is thus unconstitutional and in 

violation of Article III, Section 35, Constitution.of Texas. 

See Attorney General Opinion Nos. V-1253 (1951);WW-294 (1957), 

and W-310 (1957). 

We ~find no Texas court decision directly 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 authorized by an 

appropriation by 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.made for the 

use of the Corporation Commission,~his action 

.would have been ineffective under the provi- 

.sions of our Constitution. The Legislature 

is without authority of law to confer upon 

the Governorthe power to reduce the tiount 

of an item of an appropriation. It .cannot 

authorize him to do indirectly wliat he is 

prohibited by 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 appropriation he may 

object to one or more of such items;and approve the other portion of the bill...." 

The related provisions of the Constitution of Oklahoma upon which ~the Supreme Court of that State 

based its decisions were: 

(1) Art. 5, Sec. 56, which in hits relevant 

portion read, "The general'appropriation bill 

shall embrace nothing but appropriations for 

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, "Every bill 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 appropriation therein contained, he shall communicate such disapproval, 

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 original provisi.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 laing was followed and reaffirmed in State 

v. Carter, l.0: P(I2d 518 (1940) by the same Court. - 

In effect, -giving the Governor of Texas a statutory 

authorization to approve or disapprove an expenditure which 

had already beep, appropriated would be a second veto privilege. 

Our Texas Constitution, like the Constitution of Oklahoma, 

prohibits the Governor from having more than the one veto provided for .in Article IV, Section 14, of the Texas Constitution. 

We are aware that the decisions of the courts of 

last resort of some States have made declarations that their 

state legislature might constitutionally subject the expenditure or'payment of appropriated money to the approval of the 

Governor or other state officer who is otherwise without oopstitutional authority to approve or disapprove expenditures. 

42 Am.Jur. 752, Public Funds, Sec. 50 (copyri'ht' 1942), and 

91 A.L.R. 1511-1514. Hwever, we have carefu 9 ly considered 

all the cases cited in these texts , and find th 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 executive may-control expenditure of appropriated funds, but the holding in the 

case is that the " . ..deIegaticn rust fail because 

no standards have been provided..\." (p. 932). 

(2) In Sellers v. Frohmiiler, 24 P.2d 666U4riz. 

Sup. 1933). approval of the authority is stated at 

p. 668, but then decision of .the court is grounded 

on the proposition that the authority granted by 

statute was unconstitutional because it was genera1 

legislation in the general appropriation bill (p. 669). 

(3) In People v. Tremaine, 168 N.E. 817 (Ct. of App., 

N.Y. 1929, Ct. of last resort) the Court held that 

statutory appointment of membere of the-legislature to a committee which had certain approval 

powers over expenditure of appropriated funds, was 

void. 

(Footnote 2 continued on following page.) 

-5558- 
hon. Harry P. Burleigh, lion. James U. Cross, page (1. (M-rlili 

a clear decision 'of our 

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.T tCdecisions of Oklahcana and the weight of authority. As state3 

in 42 Am.Jur. 752, supra, with reference to various attrmpt; 

to subject the expenditure of appropriated money to the apprc 

val of the governor or other officer, "in most =ases...tc: 

courts have held them invalid...". 

In. answer to your first question, 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'for dues 

tration fees or membership fees. The Governor of Texas l!~a~"~~' 

(Footnote 2 continued) 

This case further holds that those members of the 

Legislature hold a separate office of appoin"Jnent 

by the Legislature which conflicts with their office.as legislators because it'is ehblly unrelated 

to their legislative duties. The effect of the 

Governor's membership on the committee was not considered in this context, but we do not discern why 

he also was not given certain duties in irreconciliable conflict with his duties as governor. On this 

ground his appointment likewise would be unconstitutional'. The concurring opinion (p. 82'5) maket 

further declarations to the effect that tha Govti;rncr 

would act as an administrative officer (duties) ;ZI 

conflict with the duties of the state adxiniatrative officers to whom the funds were 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 another ground. 

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

disoretion to disapprove or veto the requested expenditure 

asked for by a State agency under Section 16 of Article V of 

the current General Appropriation Act; nor does this Section 

16 apply to the expenditure of appropriated funds for educational and training programs not requiring the payment of dues, 

registration fees, or similar expense. 

In view of our answer to your first question, 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 current Appropriation Bill, 

it is only necessary under that rider to file your expense 

statement with the Legislative Budget Board for its information 

and subsequent budgetary 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 ore participating in'an organieation without the above discussed Governor's 

approval contemplated by Section 16 of Article V of the General 

Appropriation Bill, and without regard to whether the expenditure is made after the beginning of the normal membership period 

of such organizition. Section 16 neither expresses nor necessarily implies that the membership must occur or that the expenditure must 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 

~muet issue his.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 as we have so held herein, and it may not be 

required bythe 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 anticipate when new 

ones will occur. If use of appropriated funds 

under the provisions of Section 16 is to be additionally contingent upon approval by the 

-f&60- 
. . 

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

Governor in 'advance' of the beginning of 

the'normal membership period of the organisation, society, or association, the State 

of Texas vi11 be denied substantial benefits 

it would have'derived from professional enhancement of our technicians and specialists 

through their relatfonehipe with the ecientific and ,profeesional community." 

Neither the Governor nor the Comptroller is charged 

with any duty to oversee, supervise or veto the above determind.. 

tion to make the expenditures by the etate.departmente and 

agencies, and we must therefore answer your third question in 

the affirmative. 

SUMMARY ----we- 

(1) Section 16 .of Article V of the current General Appropriation Act insofar as it. 

requiree~ approval of the Governor for the expenditure of appropriated funds to be used to 

pay dues, registration fees, or any kind of 

similar expense incurred in joining or participating in any type of organization, association,' 

or society, is invalid and void. All,statements 

of expenditures for these purposes, however, 

should be filed with then Legislative Budget 

Board for informational and budgetary considerations. 

(2) The Comptroller is authorized to approve payment for dues and fees for a state 

department or agency incident to joining or 

participating in an organization without approval 

of the Governor as contemplated by Section 16, 

Article V, General Appropriation Act, and even 

though the membership does not occur and the 

expenditure is not made prior to the beginning 

of the normal membership 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 

Assistant Attorney 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-