Honorable Robert S. Calvert

Comptrollerof Public Accounts Capitol Station Austin, Texas OpinionNo. WW-300
Re: Whether certain approprlations to the Board for Texas State Hospitals and Special Schools for the payment of refunds are Dear Mr. Calvert: supportedby pre-existing law.
You have requestedwhether the appropriations contained in Item 1 under the heading of pay patient refunds and Section 3 of the riders to the appropriations to the Board for Texas State Hospitals and Special Schools are supportedby pre-existing law.

Item 1 under the heading of pay patient refunds to the appropriation to the Board for Texas State Hospitals and Special Schools contained in Article II of House Bill 133, Acts of the 55th Legislature, 1957, provides:
“For the Years Ending August 31, 1958 August 31,
"Out of General Revenue 1959 Fund: "1. There is hereby appropriated out of the General Revenue Fund to the Doard for Texas State Hospitals and Special Schools for the Payment of pay patient refunds,which are approvedby the business managers of the respect-tve

institutions under the Hospital Roard, the sum of $10,000 $10,000Honorable Robert S. Calvert, Page 2 (WW-300)

"All receipts to institutionsunder the Board for Texas State Hospitals and Special Schools for pay patient collections shallbe deposited to the credit of the General Revenue Fund. Disbursements of refunds shallbe made by the Central Office only after receiving approval of the Butiness Manager of the respective institutions. Article 3196a, Vernon's Civil Statutes,provides for the admission and care of mentally ill persons and authorizes the Board to charge relatives and guardians of the estate of mentally Ill patients for the care and treatment of such patients. Attorney General'sOpinionWW-253 (1957). There is no provision, however, in Article 3196a or any other article applicable to the Board for Texas StateHospitals and Special Schoolswhich provides for the payment of refunds of money collected for the care and treatment of patients at the institutions under the control of the Hospital Board.

Section 4liof Article III of the Constitutionof Texas provides: "The Legislatureshall provide by law for the compensationof all officers, servants,agents and public contractors,not provided for in this Constitution,but shallnot grant extra compensation to any officer, agent, servant, or public contractors, after suchpublic service shallhave been performed or contract entered into, for the perform- &nce of the same;nor grant, by appropriation or otherwise,any amount of money out of the Treasure of the State, to any individual,on a claim, real or pretended,when the same shallnot have been provided for by pre-existing law; nor employ any one in the name of the State,unless authorizedby preexisting law." (Emphasisadded) This provision has been construedby the courts of this State to mean that the Legislature cannot appropriate State money to any individual "unlessat the very time appropriation is made there is already in force somevalid law constituting the claim the appropriation ismade to pay 2 legal and valid obligation of the State." Austin National Bank~~v. Sheppard, 123 Tex. 272, 71 S.W.2d 242 (1934). See also Fort Worth Cavalry Club v. Sheppard, 125 Tex. 339, 83 S.W.2d 660 (1935); State v. Stcck Company, 236 S.W. 2d 866, Tex. Civ. App. (1951, error ref.); Attorney General'sOpinionWW-96 (1957);Attorney General'sOpinion WW-150 (1957). By a legal obligationreferred to above, is meant such an-obligationaswould form the basis of a judgment.
HonorableRobert S. Calvert,page 3. (ww-300)

against the State in a court of competent jurisdiction in the event it shouldpermit itself to be sued. Austin National Hank v. Sheppard, supra.

In Corsicana CottonMills v. Sheppard, 123 Tex. 71 S.W.2d 247, it was held that where a corporationvolun352,
teers the payment of taxes, a legislativeapproprlatlon to refiiKdXuci-F~Zy%En~ -.-_ _o axe-s violated the provisions of Section ~o~:,Art~,c~e-_I‘If in,-_that

~thecorpo.ratlon-liKd~dIaim against the Eale for ~K.-~~-.-g-.~-.~~~ "a~~'..~~~"~~-~~",‘t~~.~~p~io"pria

_ tion was ma6~,-~~~,~~~~~~~~~~~~~~~, _,,,~,_," pproprIatI8n was noXXi$p1'- tITF.~a. ..- ,,.. ~.~.. ~. .._..._.

~,-", ported by pre-existing, law. However, L‘ ~~.~ .Eexd.-T-

.se~a~e~. Akin Product Company, 155 Tex. 286 S.W.2d 110, that taxes paid under duress of an unconstitutionalact may be refunded.

In view of the foregoing, it is our opinion that the above quoted appropriationappropriatesmoney for refund of moneys paid both voluntarily and under duress. Insofaras the appropriationappropriatesmoney for the payment of refunds that do not constitutea legal obligation as that term is defined in Austin National Hank v. Sheppard, supra, suchappropriation is not supportedby pre-existing law. Insofaras the above quoted appropriationappropriatesmoney for refund of moneys paid under duress, the appropriation is You are, therefore, supportedby pre-existing law. advised that the payment from this appropriation for pay patient refunds will depend on the facts in each case in which the claim for refund is presented.

Section 3 of the riders to the appropriation to the Hoard for Texas State Hospitals and Special Schools in House Bill 133provides:

"Sec. 3. Services to employeesand guests. In order to reimburse equitably the appropriation items in this Article from which expendituresare made fork services to employees and guests, the followingreimbursement rates and rules shall apply: "Servicesfurnishedby the institutionsto employees shallbe valued at not less than the following:

:: i30 per month for meals for adults 15 per month for meals for children,ages 1: i 2 through 15 5 per month for laundry 15per month for lodging, excluding medical personnel of hospital system "$15per month per room for the first room for lodging of medical personnel ofHonorable Robert S. Calvert,page 4. mi-300)

hospital systemand $10 per month per room for each additional room "Collectionfor servicesrendered employees and guests shallbe made by E deduction from the recipient’s salary or by cash payment in advance. Such deductionsand other receipts for these services from employees and guests are hereby reappropriated to the 'OtherOperating Expenses' of the institution. Refunds for excess collections shall be made from the appropriation to which the collection was deposited. "Employeesresiding away from the grounds of the institutions in which they are employed shall pay cash for only suchmeals at the institutions as theymay actually take, and there shallbe no deductions from the regular salarypayment due employees of the respective institutionsfor institutional services or emolumentsnot actually receivedby said employees."
In Attorney General's Opinion~11-265(1957), it was held:
"In Opinionm-96 this office held that the General AppropriationBill may direct appropriation of money and may detail, limit or restrict the use of funds so appropriatedwhere suchprovisions are necessarily connectedwith and incidental to the appropriationand use of the funds. Daughters of the Republic of Texas, 156 S.W. 197 (1913). "Suchprovisions concerning'accountingprocedures and directionsas to the method of expenditure and reimbursementof certain funds are permissible and proper so long as they do not conflictwith the general law on the subject. OpinionV-1254. Attorney General's

However, general legislation constitutesa separate subject and cannot be included within a General AppropriationBill, and a rider to a general appropriationbill cannot repeal,modify or emend an existing general law. Moore v. Sheppard, 144 Tex. 537, 192 S.W.2d 559 Tex. 451, 49 S.W. 57 Tex. 203 (1882); Attorney Genvio. V-1254." Applying the principles of law announced in Attorney General's Opinion~~-265, it is noted that Section 3 of ArticleHonorable Robert S. Calvert, Page 5 (WW-300)

TI not only provides for the emoluments of employees of the several Institutionsunder the jurisdictionand control of the Hospital Board, but also attempts to authorize expenditures for services to guests. Such provisions do not concern the direct appropriationof money nor concern accountingprocedures and directions as to method of expenditure,but authorize the expansion of serviceswhich are not now authorizedby general law. To this extent its provlslons constitutea proper subject for general legislation in violation of Section 35 of Article III of the Constitutionof Texas. AttorneyGeneral's OpinionW-96.

Therefore,you are advised that Section 3 of Article II,House Bill 133, Acts of the 55th Legislature, 1957, Chapter 385, is supportedby pre-existing law insofar as Its provisions are applicable to employees of institutions under the jurisdictionand control of the Hospital Board. You are further advised that its provisions are not supported by pre-existing law Insofar as it applies to "guests",and further, suchprovisionsviolate the provisions of Section 35 of Article III of the Constitutionof Texas.

SUMMARY

Moneys appropriated for pay patient refunds are supported by pre-existing law insofar as it authorizes the payment of refund of moneys collected under duress. Section 3 of Article II of House Bill 133, Acts of the 55th Legislature, is supportedby pre-existing law insofar as it provides for the emoluments of employees of the institutionsunderHonorable Robert S. Calvert, Page 6 (W'W-300)

the jurisdictionand control of the Board for Texas State Hospitals and Special Schools.

Yours very truly,
WILL WILSON Attorney General of Texas

Assistant JR:jl
APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn, Chairman
J. Mark McLaughlin Leonard Passmore
C. K. Richards Marietta Payne
REVIEWED FOR THE ATTORNEY GENERAL BY:
James N. Ludlum