January24,1972

Honorable Robert S. Calvert OpinionNo. M- 1044 Comptroller of PublicAccounts State Finance Building Re: Authority of the Comptroller Austin, Texas 78711 to disburse a lump sum appropriation to the Elm Creek Dear Mr. Calvert: Water Control District.

Your request for an opinion on the above subjectmatter askswhether you have authority to issue a warrant in a lump sum of $5,000.00to the Elm Creek Water Control Districtpursuant to at item of appropriation in the current General Appropriation**Act.*** This item of appropriationappears on page 128 of Article III of the Act and reads as follows:

"There is hereby appropriated $5,000 out of the General Revenue Fund for the biennium beginning September 1, 1971, for all necessary operating expenses in conjunctionwith the operationof the Elm Creek Water Control District." The Governor'sveto message dated June 20, 1971, reads, in its relevantpart, as follows:

"Therefore,by authority granted inme by Article IV, Section 14, of~the Texas Constitution, I hereby veto each and all of the items appropriated for the fiscal year endingAugust 31, 1973 from Senate Bill No. 11, Sixty-Second Legislature,Regular Session." (Emphasisadded.)

l S.B. 11,Acts 62nd Leg., R.S. 1971, as amended by S.B. 7, 1st C.S., same Leg., 1971.

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The item of appropriation to the Elm Creek Water Control District is a lump sum appropriation for not only the fiscalyear beginning September 1, 1971, but also for the fiscalyear ending **August 31,**  **1973.**

We view the issuepresented **by** your request as follows: Did the Governor,by his veto message, intend **to** veto the entire $5,000 item of appropriation for the Elm Creek Water Control **Dis** trict, or only that portion of the item appropriated **for** the fiscal year ending **August 31,**  **19731**

The applicable rule of construction is that "In construing thepurport of a veto message the same rules of construction that govern in construing legislative acts shouldbe applied." Fulmore v. Lane, 104 Tex. 499, 509, 140 S.W. 405, 411 (1911). In accordance wfthis rule,we **are of**  the opinion that, as stated in his veto message, the Governor intended to veto only that portion of the appropriation for the District for the fiscalyear endingAugust 31, 1973. Having arrived at the foregoingpremise concerningthe intent of the Governor,we now consider whetherhis veto of a portion of a lump sum, two-year appropriation is valid. Clearly, his veto would be valid if the appropriationto the District bad beenmade in terms of two separate fiscal **year** items. Fulmore v. Lane,m.

This not being the case, however, it is settledthat the zt:z has no constitutional authority to veto only 

### aportion of

. Either the entire item must be vetoed, 

### or the entire item will stand as it was enacted by the Legislature. As the Supreme **Court** of **Texas** long **ago** stated:

"The executive veto power is to be found alone in section 14, article 4, of the Constitution of this State. By that sectionhe is authorized to disapprove any bill inwhole, or if a bill contains **several** items **of** appropriation,he is authorized to object to one or **more** of such items. Nowhere in the Constitution is the authority given the Governor to approve In part and disapprove in part a bill.,,,The only additional authority to disapproving,abill in whole is that given to object to an item or items where a bill contains several items of appropriation. It followsconclusively that where the veto power is attempted to .beexercised to object to a paragraph or portion of a bill other than an item or items, or the-language qualifying an appropriationor directing themethod **of** its uses, he exceeds the -5105-. .

Hon. Robert S. Calvert, page 3 (M-1044)

constitutionalauthorityvested in him, and his objection to such paragraph,or portion of a bill, or languagequalifying an appropriation, **or** directing themethod of its use, becomes noneffective. So thatwe are constrained to hold that that portion of the veto message. . .was unauthorized and thereforenoneffective, and the paragraph so attempted to be stricken out will remain as a part of the aoorooriationbill." Fulmore v. Lane, 104 Tex.-499; 514, 140 S.W. 405, 412 1911

. (Emphasisadded.) Similar situationsthat have arisen in the courts of our sister states have been adjudicated in consonancewith our holding in this Opinion. Fergus v. Russell, 110N.E. 130, 146-48 (Ill.Sup. 1915);Wood v. StateAdministrativeBoard, 238 N.W.,16, 18 (Mich.Sup. 1931); and.State ex rel. Turner v. Iowa Sta& Highway dom'n., 186 N.W.Zd 141, 151 (Iowa.Sup.1971). See also, "Disapprovalby governor of a bill in part or approvalwith modifications", 35A.L.R. 600 (1925),supplemented in 99A.L.R. 1277 (1935),and the authorities cited, therein. Under this form **of** appropriation--a lump sum **for** the biennium--ouropinion is that the Legislature intended that the Districtmight receive the full lump sum at any time during the biennium for which itwas appropriated.

toArticle

The Elm Creek Water Control District was created pursuant 8280-387,Vernon's Civil Statutes, and you are advised that that statute constitutes sufficientpreexisting law authorizing you to issue a warrant honoring the Legislature's appropriationof funds to the District. Attorney General's Opinion No. WW-1188 (1961).

Inasmuch as the Governor's attempted veto of the portion of the appropriation for the District for the fiscalyear endingAugust 31, 1973 is ineffectiveand nugatory,you are further advised that the entire lump sum appropriation is valid, and that you may issue a warrant in a lump sum of $5,000 to the District, rather than requiring specificvouchers of requisition from the officers of the District. Attorney General's OpinionsNos. MS-88 (1953),M-723 (1970)and WW-1188 (1961);Attorney General'sOpinion No. WW-187 (1957)is distinguishable.

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lion. Robert S. Calvert, page 4 **(M-1044)**

SUMMARY The $5,000 item of appropriation to the Elm Creek Water Control District for the biennium endingAugust 31, 1973, found at page 128 of Article III **of** the current General AppropriationAct (S.B.11,Acts 62nd Leg., R.S., 1971, as amendedby S.B. 7, 1st C.S., same Leg., 1971) is valid in its entirety, and the Comptroller of PublicAccounts has authority to issue a warrant in a lump sum of $5,000.
Pursuant to Section 14 of Article IV of the Constitutionof Texas, the Governor has no authority to veto a portion of an item of appropriation: either the entire itemmust be vetoed, or none of it. An attemptedveto of a portion of an item is nugatory and **of** no effect, and the item attempted to be vetoed is valid in its entirety.

ney General of Texas Prepared by Austin C. Bray, Jr. AssistantAttorney General -. APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman **W.** E. Allen, Co-Chairman Mel Corley Arthur Sandlin Ralph Rash Jack Goodman
SAWMCDANIEL Staff LegalAssistant
**ALFRED**WALKER ExecutiveAssistant
NOLA WRITE FirstAssistant

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