. - 

December 6, 1961 

Mr. V. D. Housworth 

Executive Secretary 

State Board of Barber Examiners 

512 State Office Building 

Austin, Texas Opinion No. NW-1214 

Re: Construction of Section 27 

of Article 734a, Vernon's 

Penal Code, as amended by 

H.B. 829, Acts of the 57th 

Legislature, and Article 

III of Senate Bill 1, First 

Called Session, Acts of 

the 57th Legislature, in 

reference to appropriation of monies In the 

State Board of Barber 

Dear Mr. Housworth: Examiners Fund. 

In your letter requesting an opinion from 

this office you mentioned that Section 27 of Article 

$3 

34a, Vernon's Penal Code, as amended by House Bill 

29, Acts of the 57th Le islature, Regular Session, 

1961, Chapter 287, page 2 01 provides In part that: 

II 

. . . The secretary shall keep a 

record of all proceedings of the Board 

and shall be the custodian of all such 

records and shall receive and receipt 

for all money collected by the Board. 

All money so received shall be immediately deposited with the State 

Treasurer, who shall credit same to 

a special fund to be known as 'State 

Board of Barber Examiners Fund,' which 

money shall be drawn from said special 

fund upon claims made therefor by the 

Board to the Comptroller; and if found 

correct, to be approved by him and 

vouchers Issued therefor, and countersigned and paid by the State Treasurer, 

which soeclal fund is herebv appropriated 
Honorable V. D. Housworth, page 2 (WW-1214) 

for the purPose of carrying out all the 

pa;:;;ylons of this Act. . . . Tmphaais 

In regard to the underlined portion of Section fl of Article 734a, you have posed the question of: 

"Does the referenced phrase have the 

effect of appropriating to the Board 

all moneys in the Barber Examiners 

Fund, or should we look Instead to the 

appropriations from that fund set 

forth in S.B. No. 1, 1st C.S., 57th 

Legislature, Article III of the General Appropriations Act?" 

Section 6 of Article VIII of the Constitution 

of Texas provides In part that: 

'No money shall be drawn from the 

Treasury but in Pursuance of specific 

aPProPriatIona made by law; nor shall 

any appropriation of money be made gor 

a longer term than two years, . . . 

(Emphasis added) 

In the case of Pickle v. Finley, State ComPtroller, 91 Tex. 484, 44 S.W. 480 (1898), the Court held 

that: 

II 

. . . It Is clear that an appropriation 

need not be made in the general approprlatlon bill. It is also true that no 

specific words are necessary in order 

to make an appropriation; and it may be 

conceded, as contended, that an appropriation may be made by implication when the 

language employed leads to the belief 

that such was ;he intent of the Legislature. . . . 

In the case of National Biscuit Company v. 

State of Texas, 134 Tex. 293, 135 S.W.2d 687 (1940), 

the Court held that: 

"As just stated, one of the provisions of Section 6 of Article 8 of 

our Constitution requires all appropriations of money out of the State Treasury 

to be specific. It is settled that no 
Honorable V. D. Housworth, page 3 (W-1214) 

particular form of words Is required to 

render an appropriation specific within the meaning of the constitutional 

provisions under discussion. It is 

sufficient if the Legislature authorizes the expenditure by law, and 

specifies that purpose for which the 

appropriation is made. & appropriation can be made for all funds coming 

from certain sources and deposited JJ 

3 special fund for a designated puroose. 

In such ,instances, it is not necessary 

for the appropriating Act to name a 

certain sum or even 2 maximum sum. . . .'I 

.(Emphasls added7 

In view of the holdings of the Supreme Court 

of Texas In Pickle v. Finley, State Comptroller, supra, 

and National Biscuit Comoany v. State of Texas, sunra, we 

are of the opinion that the language found in Section 

27 of Article 734a, as amended by House Bill 829, meets 

the mandatory requirements of Section 6 of Article VIII 

of the Constitution of Texas so as to constitute a valid 

appropriation of all the moneys in the special fund known 

as the "State Board of Barber Examiners Fund", for 

the purpose of carrying out the provisions of Article 734a. 

However, in the words of the Court of Civil 

Appeals in the case of Atkins v. State Highway DeDarta, 201 S.W. 226 (civ.App. 1917): 

I, 

. . It is not to be understood, 

h;wever, that we hold the appropriation good for a longer term than 

two years. This statement is made 

in view of section 6, art.'8 of 

the Constitution which provides 'Nor 

shall any appropriation of money be 

made for a longer term than two years.'" 

As the provisions of Section 27 of Article 

73&a, as amended by House Bill 829, meet the mandatory 

requirements of Section 6 of Article VIII of the Constitution of Texas so as to constitute a valid appropriation, the question is then raised as to what effect is 

to be given Senate: Bill 1, the General Appropriation 

Bill, insofar as it sets forth a budgeted departmental 

appropriation for the State Board of Barber Examiners. 
Honorable V. D. Housworth, page 4 (WW-1214) 

As Senate Bill 1 attempts to restrict the 

appropriation to the State Board of Barber Examiners to 

a certain specified sum, rather than to those funds on 

hand in the "State Board of Barber Examiners Fund" on the 

effective date of House Bill 829 and such revenue as may 

be credited to such fund during the two year period 

following the effective date of House Bill 829, it is 

invalid and ineffectual to the extent that It attempts 

to limit the appropriation to the State Board of Barber 

Examiners to a certain specified sum. The appropriation found in Section 27 of Article 734a, as amended by 

House Bill 829, places no such restriction upon the 

appropriation, and it has long been held that a 

biennial appropriation, such as Senate Bill 1 in the 

Instant case, cannot control, amend or repeal a general 

law. Consequehtly, we are of the opinion that the 

State Board of Barber Examiners will not be limited In 

its expenditures to those funds appropriated by the 

Legislature pursuant to the provisions of Senate Bill 1, 

but in fact will be authorized,to expend, for the two 

?%F ii 

eriod commencing with the effective date of House 

29 and for the purpose of carrying out the provisions of Article 73&a, all of the monies on‘hand in the 

"State Board of Barber Examiners Fund" on the effective 

date of House Bill 829, in addition to all monies 

credited to such fund during the two year period following the effective date of House Bill 829. Such expenditures are, however, limited by certain restrictions 

found in Section 27 of Article 73&a, as amended by House 

Bill 829, which will be commented upon in reply to your 

last question. 

While we have held that the provisions of Section 27 of Article 73&a, as amended by House Bill 829, 

rather than the provisions of Senate Bill 1, control 

as to the appropriation made to the State Board of 

Barber Examiners, this office held In Attorney General's 

Opinion No. V-414 (1947) that: 

. . . S.B. 391 being the biennial 

appropriation act, cannot control a 

general law, but may express a 

legislative intent as to use of the 

moneys appropriated therein and any 

restriction upon the use of moneys 

~0 appropriated a govern -- so long 

as It does not llun afoul 3 general 

&@. -"(Emphasis . . . added) 

In view of this previous holding by this 

office, we are of the further opinion that in the 

instant case the legislative intent found in Senate 

Bill 1, insofar as It applies to the appropriation made 
. - 

Honorable V. D. Housworth, page 5 @W-1214) 

to the State Board of Barber Examiners, should govern 

up to and including the amounts specified in the appropriation made by Senate Bill 1 to the State Board of Barber 

Examiners, and thatany available funds in the"State 

Board of Barber Examiners Fund" over and above the 

total appropriation contained in Senate Bill 1 in regard 

to the State Board of Barber Examiners may be expended 

in such manner as the State Board of Barber Examiners 

deems necessary and proper for the purposes of carrying 

out the provisions of Article 734a, subject only to the 

restrictions contained In Section 27 of Article 734a, 

as amended by House Bill 829. 

Your letter further re~quested an opinion 

upon the quest~ion of: 

11 

. .~ . what would be the terminal date 

of the appropriations made in the basic 

statute (i.e. H.B. 829) and would S.B. 

No. 1 have the effect of providing 

appropriations for the use of this Board 

between that terminal date and the end of 

the current biennium on August 31, 1963?" 

As the effective date of House Bill a29 Is 

August 28, 1961, the appropriation contained in Section 

27 of Article 734a, as amended by House Bill 829, 

cannot, under the provisions of Section 6 of Article 

VIII of the Constitution of Texas, be for a period 

longer than two years. Therefore, the terminating date 

for the appropriation found in Section 27 of Article 

734a, as amended by House Bill 829, is August 27, 1963. 

We are of the opinion that the provisions of 

Senate Bill 1 would have the effect of providing appropriations for the use of the State Board of Barber Examiners 

for the period of time between August 27, 1963, and 

August 31, 1963. 

The last question posed by your letter is 

set forth as follows: 

"The last paragraph of Section 27 as 

amended by the said H.B. 829 relates 

to compensation of members of the 

Board and their reimbursement ,for 

traveling expenses. If H.B. 829 does 

in fact appropriate all moneys in ~the 

Barber Examiners Fund to the Board 

for the purposes of such act, then 
Honorable V. D. Housworth, page 6 (NW-1214) 

is the per diem for members of the 

Board limited to the amount set out 

in S.B. No. 1, the general appropriations act; and are the amounts 

available for their travel reimbursement, and office expense, limited to 

the annual sums set forth in such act?" 

Section 27 of Article 734a, as amended by 

House Bill 829, provides for an appropriation of the 

funds In the 'State Board of Barber Examiners Fund", 

but there is also found therein the following provision 

placing a restriction upon such appropriation: 

"The compensation of the members 

of the Board shall be a per diem as 

set by the General Appropriations Act, 

and In addition to the per diem provided for herein, they shall be 

entitled to traveling expenses in 

accordance with the appropriate provisions of the General Appropriations 

Act. . . .' 

In view of the foregoing language, we are of 

the opinion that the per diem of the members of the 

State Board of Barber Examiners and the funds available 

for their travel reimbursement are restricted to those 

amounts found in line Items one (1) and five (5) of 

the departmental appropriation for the State Board of 

Barber Examiners in Senate Bill 1. 

SUMMARY 

The provisions of Section 27 of 

Article 73&a, Vernon's Penal Code, 

as amended by House Bill 829 have 

the effect of appropriating to the 

State Board of Barber Examiners 

all moneys in the "State Board of 

Barber Examiners Fund" on the effective date of House Bill 829 as well 

as all funds credited to such fund 

for a period of two years thereafter. 

The terminating date for the appropriation found in Section 27 of 

Article 734a, as amended by House Bill 

829, IS August 27, 1963. 

The per diem of the members of the 
. - 

Honorable V. D. Housworth, page 7 (WW-1214) 

State 

funds 

ments 

Board of Barber Examiners and the 

available for their travel reimburseare restricted to those amounts found 

in line items one (1) and five (5) of the 

departmental appropriation for the State 

Board of Barber Examiners in Senate Bill 1. 

PB:lgh 

Yours very truly, 

WILL WILSON 

APPROVED: 

OPINION CCMMITTEE 

W. V. Geppert, Chairman 

Jerry H. Roberts 

Leon F. Pesek 

J. Arthur Sandlin 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: Houghton Brownlee, Jr.