Honorable Robert S. Calvert Opinion No. M-942 

Comptroller of Public Accounts 

State Finance Building Re: Applicability of recent 

Austin, Texas Presidential Executive 

Order providing for 

stabilization of prices; 

salaries, etc., to the 

State of Texas, and related questions. 

Dear Mr. Calvert: 

This will acknowledge your letter of August 20, 1971, in 

which you requested the opinion of this office on the following questions: 

"1 . Is President Richard Nixon's Executive 

Order providing for stabilization of prices, rents, 

wages and salaries applicable to the State of Texas? 

"2 . Does Governor Preston Smith's Proclamation of August 19, 1971, have any effect? 

"3 . Is the Comptroller of Public Accounts 

authorized to pay salaries at sums less than those 

provided for in Senate Bill 11, Acts of the 62nd 

Legislature, Regular Session, 1971, and House Bill 

279, Acts of the 62nd Legislature, Regular Session, 

1971. Stated another way, does the law authorize 

him to conform to the Presidential Proclamation?" 

The first question is whether the President's Proclamation freezing wages and prices applies to the state. 

Section 1 of the Proclamation states: 

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Hon. Robert S. Calvert, page 2 (M-942) 

"Prices, rents, wages, and salaries shall be 

stabilized for a period of ninety (90) days from 

the date hereof at levels not greater than the 

highest of those pertaining to a substantial volume 

of actual transactions by each individual, business, 

firm and other entity of any kind during the thirty 

day period ending August 14, 1971 . . .(I 

In determining the intent of the President, we must 

examine the language quoted above which states ". . . or 

other entity of any kind." The authorities clearly indicate 

that this language is broad enough to Cover the state. 

In Case v. Bowles, 327 U.S. 92, 66 S. Ct. 438, 90 L.Ed. 

552, (1946), the State of Washington became involved with the 

federal government over whether the Emergency Price Control 

Act applied to the state's selling of timber to various 

individuals pursuant to state law. The State of Washington 

took the position that because the word "State" was not 

mentioned in the Emergency Price Control Act that Congress 

did not intend for this Act to apply to the states. However, 

the Supreme Court held that just because Congress does not 

use the word "State" in any Act does not mean conclusively 

that the Act does not apply to a state or the states. The 

court found language in the Emergency Price Control Act 

similar to the above quoted language of the President's 

Proclamation and stated that that language was broad enough 

to cover states and the court also observed that to hold otherwise would frustrate the obvious intent of Congress to control 

inflation under the Emergency Price Control Act if the states 

were not covered by such Act. 

In addition to Case v. Bowles, supra, there is a companion 

case styled Hulburt v. Twin Falls County, Idaho, 327 U.S. 103, 

66 S.Ct. 444, 90 L-Ed. 560 (1946). which holds that the Emergency 

Price Control Act applies to a county. The Supreme Court in 

this latter decision applied the same rationale as found in 

the Case v. Bowles decision. 

There is one decision which seems somewhat in conflict 

with the above stated decisions. It is the case of Penn Dairies 

The Milk Control Commission, 318 U.S. 261, 63 S.Ct. 617, 

:;-L-Ed. 748 (1943). In this case the Supreme Court stated 

-4601- 
Hon. Robert S. Calvert, page 3 (M-942) 

a rule that in the absence of an express intent by Congress 

to set aside a statute of the state regulating the internal 

affairs, the court would not lightly infer or imply such 

intent where the act is ambiguous. 

In the Penn Dairies case the Supreme Court refused to 

apply a federal statute to resolve an alleged conflict between 

the federal statute and a state law on the basis the federal 

statute did not expressly use the term “State” and consequently 

the Supreme Court found no supremacy clause problems. However, 

in a more recent decision, California v. Taylor, 353 U.S. 553, 

77 S.Ct. 1037, 1 L.Ed.2d 1034 (1956), the Supreme Court held 

that an act of Congress, which dealt with regulations under 

the Interstate Commerce Clause of all public railroads, 

that a railroad owned by the State of California was subject 

to the congressional act in spite of the fact congressional 

act did not use the term "State" in the Act. The court stated 

in essence where the aim of an act can fairly be inferred to 

apply to a state, then such aim cannot be disregarded for lack 

of specific language. 

Also, it should be pointed out that a 1963 decision by 

the Supreme Court styled Paul vs. U.S., 371 U.S. 271, 83 

S.Ct. 426, 9 L.Ed.2d 292 (1963) cast a serious cloud over 

the viability of the Penn Dairies case. The dissent in Paul 

vs. U.S. indicates that the majority opinion in the Paul case, 

in effect, overrules the Penn Dairies case on the question of 

whether a federal act covered the state and therefore was 

in conflict with the state act and the state act had to fall 

under the supremacy clause. 

We have before us at this time a Presidential Order based 

upon an Act of Congress which provides "the President is 

authorized to issue such order and regulations as he may 

deem appropriate to stabilize prices, rents, wages, and 

salaries . . .II and the Act further provides "whenever it appears . . _ that any person has engaged . . ." In our opinion, 

based upon an analysis of the above discussed decisions, the 

Executive Order is applicable to the State of Texas and all 

other states. 

Any state law, however, clearly within state acknowledged 

power, which interferes with or is contrary to a valid federal 

-4602- 
Hon. Robert S. Calvert, page 4 (M-942) 

law must yield to the federal law to the extent of the conflict. Continental Radio Co. v. Continental Bank & Trust Co., 

369 S.W.2d 359 (Tex.Civ.App. 1963, error ref., n.r.e.1; 

Free v. Bland, 369 U.S. 663 (1962, revg. 344 S.W.2d 435, Tex. 

Sup., 1961, and conformed to 359 S.W.2d 27). 

The principle is well established that 

II . . . where Congress has authorized a public 

officer to take some specified legislative action 

when in his judgment that action is necessary or 

appropriate to carry out the policy of Congress, 

the judgment of the officer as to the existence of 

the facts calling for that action is not subject to 

review . . . N U.S. v. Bush, 310 U.S. 371 (1940). 

In this Bush case, the President of the United States 

acted, as authorized under Act of Congress, by Proclamation 

to increase the duty and changes in classification of certain 

foreign imports. In the earlier case of Dakota Cent. Telephone Co. v. State of South Dakota, 250 U.S. 163 (1919) the 

very broad powers of the President to take possession and 

control of telegraph, telephone, and other communication companies, and operate them, by Proclamation, under authorization 

of Congress and his wartime powers, was upheld. An Executive 

Order of the President 

II 

. . . is to be accorded the force and effect 

given to a statute enacted by Congress . . .II 

Farkas v. Texas Instrument, Inc., 375 F.2d 629 

(5th Cir. 1967, cert. den. 389 U.S. 977) 

The power of the President to act by the Executive Order 

under consideration is fully sustained by the authorities 

cited in support of the text in the text book entitled Modern 

Constitutional Law, by Chester J. Antieau, Volume II, Section 

11:21 at pages 222-231, and Sections 13:22 through 13:25 at 

pages 526-531. 

I, . . . the clearest demonstration of arbitrariness 

is required to justify a court in striking down a 

proclamation of the President." 16 C.J.S., 437 

Constitutional Law, Sec. 99, citing Beal v. U.S., 

C.A. Ey. 182 F.2d 565, cer. den. 71 S.Ct. 81, 340 

-4603- 
Hon. Robert S. Calvert, page 5 (M-942) 

U.S. 852, 95 L-Ed. 625. 

We conclude that the Executive Order is a valid exercise 

of executive power pursuant to express congressional authorization. 

The next question for consideration is what effect the 

Governor's Proclamation of August 19, 1971, has upon the payment of wages and salaries to State officials, State employees 

and teachers in the public schools of this State, pursuant to 

the provisions of Senate Bill 11, Acts of the 62nd Legislature, 

Regulat Session, 1971, as amended, and House Bill 279, Acts 

of the 62nd Legislature, Regular Session, 1971. At this point, 

the terms of the Governor's Proclamation of August 19, 1971, 

should be examined, and they are set forth as follows: 

"I do hereby proclaim that the State of Texas 

will abide by the laws of the State of Texas and 

will put into effect on September 1, 1971, the provisions of Senate Bill 11, Acts of the 62nd Legislature, Regular Session, as amended, and House Bill 

279, Acts of the 62nd Legislature, Regular Session. 

"By this proclamation, I am hereby instructing 

all State agency heads to comply with Senate Bill 11 

and House Bill 279. In complying with this proclamation, no State agency head shall be liable for 

obeying these provisions of state law. As Governor 

of the State of Texas, I accept full responsibility 

for the actions taken by all state agency heads 

pursuant to this proclamation." 

The foregoing provisions of the Governor's Proclamation of 

August 19, 1971, merely instruct the heads of all state agencies 

to put into effect and comply with the provisions of Senate 

Bill 11, The General Appropriations Bill, and House Bill 279, 

which sets forth certain salary increases for the teachers of 

the public schools. Such Proclamation does not specifically 

instruct the heads of the various State agencies to ignore or 

defy the Presidential Executive Order freezing wages and 

salaries. 

-4604- 
Hon. Robert S. Calvert, page 6 (M-942) 

While the Governor's Proclamation does not specifically 

set forth that Senate Bill 11 and House Bill 279 are to be put 

into effect in a manner in conflict with the Presidential 

Executive Order, the following comments will be based upon 

the assumption that the intent of the Governor's Proclamation 

was for the various heads of State agencies to disregard the 

Presidential Executive Order in the payment of wages and salaries 

pursuant to Senate Bill 11 and House Bill 279. 

Section 1 of Article IV of the Constitution of Texas provides that: 

"The Executive Department of the State shall 

consist of a Governor, who shall be the Chief 

Executive Officer of the State, a Lieutenant Governor, 

Secretary of State, Comptroller of Public Accounts, 

Treasurer, Commissioner of the General Land Office, 

and Attorney General." 

Section 10 of Article IV of the Constitution of Texas provides: 

"He (the Governor) shall cause the laws to be 

faithfully executed and shall conduct, in person, 

or in such manner as shall be prescribed by law, 

all intercourse and business of the State, with the 

other States and with the United States." 

Of significance is the interpretative commentary following Section 10 of Article IV which provides: 

"The obligation placed by this section upon 

the governor to cause the laws to be faithfully 

executed is, obviously, executive in nature. But 

this obligation, and the fact that the governor 

is made the chief executive officer of the state, 

do not confer upon him any specific power. In 

construing state constitutions, the state courts 

have not derived, as has the Supreme Court of the 

United States with respect to the Federal Executive, 

any very large power from such a general power or 

duty as to the duty to see that the laws be 

-4605- 
Hon. Robert S. Calvert, page 7 (M-942) 

faithfully executed. The rule of delegated powers 

has been construed strictly as to the governor, 

so that he has no particular power unless granted 

to him, expressly or impliedly. 

"Moreover, this responsibility placed upon him 

for law enforcement in Texas is more fiction than 

reality, for the constitution gives the governor little 

power to see that the laws are enforced. Other than the 

power to declare martial law and the use of the militia 

and Texas Rangers, little or no means of carrying out 

this responsibility is provided. Apparently, as has 

been stated, this section confers upon the governor 

only the duty to give direction to the management of 

affairs in all the branches of the executive department. 

See Houston Tap & Brazoria R. Co. v. Randolph, 24 T. 

317 (1859)." 

The case of Houston Tap & Brazoria R. Co. v. Randolph, 

24 T. 317 (1859) referred to contains an informative comment 

by the court upon the relationship between the Governor and 

the other agencies and officers comprising the Executive 

Department of the State of Texas, and such comments are set 

forth as follows: 

II 

. . . He (the governor) is the head of the 

Executive Department of the State, and it is made 

his duty, by the Constitution, to 'take care that 

the laws be faithfully executed'. It is evidently 

contemplated, that he shall give direction to the 

management of affairs, in all the branches of the 

Executive Department. Otherwise he has very little 

to do. Where he has the power of removal, he can 

assume authoritative control absolutely in all of 

the departments. This being the case in the United 

States government, results in the entire unity of its 

Executive Department. The absence of that absolute 

power of the chief executive in this State must 

occasionally produce a want of harmony in the 

executive administration, by the inferior offices 

of that administration, declininq to comply with 

the wishes, or to follow the judgment of the 

-4606- 
Hon. Robert S. Calvert, page 8 (M-942) 

governor. That is an inherent difficulty in the 

organization of that department, and the conflicts 

arising out of it, cannot be adjudicated or settled 

by the judiciary. The fact that there is no remedy 

for an injury growing out of such conflict, cannot 

justify another department, to wit, the judiciary, 

in overstepping the boundary of its prescribed 

authority for the purpose of furnishing a remedy. 

The other department, the legislative, may be able to 

furnish a remedy. The judiciary act on passed facts. 

The Legislature acts by devising for the future . . .'I 

(Emphasis added.) 

In the case of Williams v. State, 176 S.W.2d 177 Ct. of 

Crim.App. 1943, the court had certain questions before it 

dealing with a proclamation of the governor and the court's 

comments in connection with these issues is set forth as 

follows: 

"Does the Act provide for reasonable notice 

of the Governor's proclamation putting into effect 

the recommendation of the Commission? 

"As to this, the record reflects that the 

Governor's proclamation was duly and regularly 

filed by the Governor, in the office of the 

Secretary of State long prior to the year 1942, and 

that appellant's land was in the regulated zone 

therein set out. A proclamation of the Chief 

Executive of this State, when duly promulgated and 

filed, occupies a position comparable to laws 

regularly passed by the Legislature. That a 

proclamation by the Governor, of and within itself, 

is notice is further manifested by the fact that 

the courts are required to take, and do take, 

judicial notice of the contents thereof . . .I' 

(Emphasis added.) 

While the foregoing case dealt merely with whether the 

Governor's Proclamation constituted sufficient notice, the 

language therein might tend to indicate that such proclamations are similar in effect to a legislative enactment. 

However, in the case of Terre11 Wells Swimminq Pool v. 

Rodriquez, 182 S.W.2d 824 (Tex.Civ.App. 1944, error ref.), 

-4607- 
Hon. Robert S. Calvert, page 9 (M-942) 

the court stated in connection with a proclamation by the 

Governor that: 

'With reference to the proclamation issued by 

the Governor on June 25, 1943, it is sufficient to 

say that the Governor of this State, even in time 

of war, is without power to chanqe the existinq law 

merely bv the issuance of a proclamation, and we 

attribute no such intention to the Governor." 

(Emphasis added.) 

Also, at this point the case of Sterlinq v. Constantin, 

287 U.S. 378, 53 S.Ct. 190, 77 L.Ed. 375 (1932). gives us a 

most enlightening example of the results of an Executive 

Order or Proclamation of the Governor of a state conflicting 

with action by the federal government. This case dealt with 

the State of Texas, and the comments of the court are set 

forth as follows: 

II . . .The question before us is simply with 

respect to the Governor’s attempt to regulate by 

executive order the lawful use of complainant's 

properties in the production of oil. Instead of 

affording them protection in the lawful exercise 

of their rights as determined by the courts, he 

sought, by his executive orders, to make that 

exercise impossible. In the place of judicial 

procedure, available in the courts which were open 

and functioning, he set up his executive commands 

which brooked neither delay or appeal, in particular, 

to the process of the federal court actually and 

properly engaged in examining and protecting an 

asserted federal right, the Governor interposed 

the obstruction of his will, subverting the federal 

authority. 

II . . . 

II . . . There was no exigency which justified 

the Governor in attempting to enforce by executive 

or military order the restriction which the District 

Judge had restrained pending proper judicial 

-4608- 
Hon. Robert S. Calvert, page 10 (M-942) 

authority. If it be assumed that the Governor was 

entitled to declare a state of insurrection and to 

bring military force to the aid of civil authority, 

the proper use of that power in this instance was 

to maintain the federal court in the exercise of 

its jurisdiction and not attempt to override it: 

to aid in making its process effective and not to 

nullify it; to remove, and not to create, obstructions 

to the exercise by the complainants of their rights 

as judicially declared . . ." 

In view of the foregoing authorities, we are of the opinion 

that the Proclamation of the Governor issued on August 19, 

1971, is merely directive to the various heads of the State 

agencies and not a mandatory requirement upon them. In 

addition, we are of the further opinion that the Governor's 

Proclamation of August 19, 1971, does not have the effect of 

altering or amending existing State or Federal statutes or 

Executive Orders. Therefore, the Governor's Proclamation 

does not repeal, modify or change the Presidential Executive 

Order in any respect. 

It is well settled that an appropriation bill sets apart 

from the public revenue sums of monies for specific objects 

authorizing the executive officers of the State to use that 

money in the amount, manner, and purpose of the various 

items of expenditures and therefore a general appropriation 

bill may contain any provisions or riders which detail, limit 

or restrict the use of funds or otherwise insure that the money 

is spent for the required activities of the State for which it 

is therein appropriated. Attorney General's Opinions 2965 

(1935) and V-1254 (1951) and authorities cited therein. It 

has been held that a general appropriation bill cannot repeal, 

modify or amend an existing general law. State v. Steele, 

57 Tex. 203 (1882); Linden v. Finley, 92 Tex. 451, 49 S.W. 

578 (1889); Moore v. Sheppard, 144 Tex. 537, 192 S.W.2d 559 

(1946). In each of these cases, however, the invalidity of 

the particular rider in question did not affect the remaining 

authorization for the expenditure of public monies and the 

stipulation of the amount, manner, and purpose of the various 

items of expenditures. The Executive Order of the President 

constitutes a portion of the pre-existing law controlling the 

Appropriation Bills. 

-4609- 
Hon. Robert S. Calvert, page 11 (M-942) 

Following the reasoning of the numerous cases construing 

appropriation bills throughout the history of this State, it 

is our opinion that the Executive Order of President Nixon 

will effect only the maximum amount of salary authorized to 

be paid in Senate Bill 11, Acts 62nd Legislature, Regular 

Session, 1971, and House Bill 279, Acts 62nd Legislature, Regular 

Session, 1971, and does not in any manner affect the remaining 

authorizations for expenditure of public monies for the purposes set out in the Appropriation Bills. 

You are accordingly advised that the Comptroller of Public 

Accounts is authorized to pay salaries at sums less than those 

provided in the Appropriation Bills in those instances required 

by the President's Executive Order and is required to take such 

other necessary steps as may be deemed appropriate to conform 

to the Presidential Proclamation. 

SUMMARY 

President Nixon's recent Executive 

Order providing for stabilization of prices, 

rents, wages and salaries is valid and applicable to the State of Texas. 

Governor Smith's Proclamation of 

August 19, 1971, does not repeal, modify or 

affect said Executive Order. 

The law requires the Comptroller of Public 

Accounts of the State of Texas to conform to 

said Presidential Executive Order. 

C 

A General of Texas 

Prepared by J. C. Davis 

Assistant Attorney General 

-4610- 
Hon. Robert S. calvert, page 12 (M-942) 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, ChairMln 

w. E. Allen, Co-Chairman 

Pat Bailey 

John Reeves 

James McCoy 

Pat Cain 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

-4611-