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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: Constructionof 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 requestingan opinion from this officeyou mentioned that Section 27 of Article
$3 34a,Vernon's Penal Code, as amendedby House Bill 29, Acts of the 57th Le islature,Regular Session, 1961, Chapter 287, page 201 provides In part that:

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. . .The secretary shallkeep a record of all proceedings of the Board and shallbe the custodian of all such records and shall receive and receipt for all money collectedby the Board. All money so received shallbe immediately deposited with the State Treasurer, who shall credit same to a special fund to be known as 'State Board of Barber ExaminersFund,' which money shallbe drawn from said special fund upon claims made thereforby the Board to the Comptroller;and if found correct, to be approvedby him and vouchers Issued therefor,and countersigned andpaid by the State Treasurer, which soeclal fund is herebv appropriatedHonorableV. D. Housworth,page 2 (WW-1214)

for thepurPose of carryingout all the pa;:;;ylonsof this Act.

. . . Tmphaais

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

"Does the referencedphrase have the effect of appropriatingto the Board all moneys in the Barber Examiners Fund, or shouldwe 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 AppropriationsAct?"
Section 6 of ArticleVIII of the Constitution of Texasprovides In part that:

'Nomoney shallbe drawn from the Treasurybut in Pursuance of specific aPProPriatIonamade by law;nor shall any appropriationof money be made gor a longer term than two years,
. . . (Emphasisadded)

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

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. . . It Is clear that an appropriation

need not be made in the general approprlatlonbill. 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 implicationwhen the language employed leads to the belief that such was ;he intent of the Legislature.

. . .
In the case of NationalBiscuit Company v. State of Texas, 134 Tex. 293, 135 S.W.2d 687 (1940), the Courtheld that:

"As just stated, one of the provisions of Section 6 of Article 8 of our Constitutionrequires all appropriations of money out of the State Treasury to be specific. It is settled that noHonorableV. D. Housworth,page 3 (W-1214)

particular form of words Is required to render an appropriation specificwithin themeaning of the constitutional provisionsunder discussion. It is sufficient if the Legislature authorizes the expenditureby law, and specifies that purpose for which the appropriation is made. & appropriation can be made for all funds coming from certain sources and depositedJJ 3 special fund for a designatedpuroose. In such ,instances,it is not necessary for the appropriatingAct to name a certain sum or even 2 maximumsum.
. . .'I .(Emphaslsadded7

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 amendedby House Bill 829, meets the mandatory requirementsof Section 6 of ArticleVIII of the Constitutionof Texas so as to constitute a valid appropriation of all the moneys in the special fundknown
as the "StateBoard of Barber Examiners Fund", for thepurpose of carrying out the provisions of Article 734a.

However, in the words of the Court of Civil Appeals in the case of Atkinsv. 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 Constitutionwhichprovides 'Nor shall any appropriationof money be made for a longer term than twoyears.'"

As the provisions of Section 27 of Article 73&a, as amendedby House Bill 829, meet the mandatory requirementsof Section 6 of ArticleVIII of the Constitution of Texas so as to constitutea 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.HonorableV. 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 "StateBoard of Barber Examiners Fund" on the effectivedate of House Bill 829 and such revenue as may be credited to such fund during the twoyear period following the effectivedate 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 amendedby House Bill 829, places no such restrictionupon the appropriation,and it has longbeen held that a biennial appropriation, such as SenateBill 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 appropriatedby the Legislaturepursuant to the provisions of SenateBill 1, but in fact willbe authorized,toexpend, for the two
?%F ii eriod commencingwith the effectivedate of House 29 and for the purpose of carrying out the provisions of Article 73&a, all of the monies on‘hand in the "StateBoard 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 effectivedate of House Bill 829. Such expenditures are,however, limitedby certain restrictions found in Section 27 of Article 73&a, as amendedby House Bill 829, which will be commentedupon in reply to your last question.

While we have held that the provisions of Section 27 of Article 73&a, as amendedby House Bill 829, rather than the provisions of SenateBill 1, control
as to the appropriationmade to the StateBoard of Barber Examiners, this officeheld In AttorneyGeneral'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 restrictionupon the use of moneys ~0 appropriateda govern so long -- as It does not llunafoul 3 general &@.

. . . -"(Emphasis added)

In view of thispreviousholding 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 appropriationmade. -

HonorableV. 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 SenateBill 1 to the State Board of Barber Examiners, and thatany available funds in the"State Board of Barber ExaminersFund" over and above the total appropriation contained in Senate Bill 1 in regard to the StateBoard of Barber Examiners may be expended in suchmanner 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 amendedby House Bill 829.

Your letter further re~quested an opinion upon the quest~ion of: 11

. .~.what would be the terminaldate of the appropriationsmade 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 terminaldate and the end of the current biennium on August 31, 1963?"

As the effectivedate 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 Constitutionof Texas,be for a period longer than two years. Therefore, the terminatingdate for the appropriation found in Section 27 of Article 734a, as amendedby House Bill 829, is August 27, 1963.

We are of the opinion that the provisions of Senate Bill 1 wouldhave the effect of providing appropriations for the use of the State Board of Barber Examiners for the period of time betweenAugust 27, 1963, and August 31, 1963.

The last questionposed by your letter is set forth as follows:

"The lastparagraph of Section 27 as amendedby the saidH.B. 829 relates to compensationof members of the Board and their reimbursement ,for traveling expenses. If H.B. 829 does in fact appropriateall moneys in ~the Barber Examiners Fund to the Board for the purposes of such act, thenHonorableV. D. Housworth,page 

### 6 (NW-1214)
is the per diem formembers 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 amendedby House Bill 829, provides for an appropriationof the funds In the 'StateBoard of Barber Examiners Fund", but there is also found therein the followingprovision placing a restrictionupon such appropriation:

"The compensationof themembers of the Board shallbe a per diem as setby the General AppropriationsAct, and In addition to the per diem provided forherein, they shallbe entitled to traveling expenses in accordance with the appropriateprovisions 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 reimbursementare restricted to those amounts found in line Items one (1)and five (5)of the departmentalappropriation 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 amendedby House Bill 829have the effect of appropriating to the State Board of Barber Examiners all moneys in the "StateBoard 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 twoyears thereafter.

The terminatingdate 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. -

HonorableV. 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
JerryH. Roberts Leon F. Pesek J. Arthur Sandlin

REVIEWED FOR THE ATTORNEY GENERAL BY: Houghton Brownlee, Jr.