Honorable Claude A. Williams 

Chairman and Executive Direotor 

Texas Unemployment Ccunpewatlon Commission 

Aus tin, Texas 

Dear Sir: Opinion No. O-5524 

IiS?: Whether Senate Bill No. 266 

applies to rental space leased 

by the Texae Unemployment Cmpenaatlon Comniseion. 

Thla will acknowledge reoelpt of~your letter of August l.3, 1943, 

wherein you have requeeted the opinion of this depar+anent upon the above 

at&d matter. So that this opinion will reflect all of the facts you 

have auhaitted to UB, we quote the body of your letter in full as followai 

"Your DepartMmt recently Issued Opinion Bo. O-927 

relative to the effect of Senate BillHo. 266, Regular 

Seseion of the 48th Legislature, upon the,payment of current rentals under existing leases. We presume, in view 

of the legislative policy ae expressed in several recent 

appropriation bills, that Senate Bill IVo. 266 (to appear 

aa Article 666b in Vernon’8 Annotated Civil Statutes) 

doe6 not apply to the fund6 used by this Commiseion for 

the payment of rentals, but in order to clarify the matter, we are requesting your opinion. 

gJnaer the atiinistratlve authority vested in this 

Commission by Article 5221b-9 (V.A.C.S.) the Commission 

has taken leases ou a number of offices located at various 

points in the State. Payment for theee leases is made out 

of the Unemployment Compensation Administration Fund 

created in the State Treaeury by Article 5221b-11 (V.A.C.S.). 

We direct your attention to tie fact that the Texas Unamployment C~peneation Conmission is not operated on funds 

derived frcm State taxation, but is operated on a grant 

from the Social Security Board under Title III of the Social 

Security Aot, as mended, and the Unemployment Compensation 

Administration Fund conslsta wholly of funds received from 

the Federal Government. These funds are not granted to the 
Honorable Claude A. Williame, Page 2 (O-5524) 

State as ouch, but rather are granted to +&la Ccanmission aa a Ccmmlsaion for administrative use by 

that body in keeping with such rules and regulations 

as may be prescribed by the Social Security Board. 

"Article 5221b-11 (V.A.C.S.) provides, among 

other things, 'all moneyw in this fund which are 

received from the Federal Government or any Agency 

thereof shall be expended eolely for the purposes 

and in the amounts found necessary by the Social 

Security Board for the proper and efficient administration of this Act.' The terms of Title III under 

which this money is granted provide that the administrative fund shall not be granted by the Social Securlty Board unless it is found that all moneys received 

from the Board are expended solely for the purposes and 

in the amounta found necessary by the Board for the proper 

and efficient administration of such State law. In this 

connection it is pointed out that all of these contracts 

must be made in accordance with standards promulgated by 

the Board and are also examined and approved by an auditor 

of the Board. 

"We therefore request your opinion as to whether or 

not Senate BillHo. 266, Regular Session of the 48th Legislature, is applicable to payment of rental by this Ccmmission out of funds received from the Federal Oovernment." 

In our opinion No. O-5427, we advised the State Canptroller of 

Public Accounts that: 

"Any new lease or rental contract entered into after 

the passage of Senate Bill 266 (Acts 1943, 48th Leg., 

effective May 7, 1943) muet be executed In the manner 

prescribed by Sections 1 and 2 of the Act. The Legislature having provided a mode for the securing of rental 

space, the agencies and deparixaenta affected are restricted to that mode and must conform to these requirements." 

(Emphasis added) 

If the Texas Unemployment Compensation Commission ia one of the 

affected agencies or departmenta therein referred to, it would follow that 

the provisions of Senate Bill Ho. 266 apply to rental space needed by it. 

If not, the Commission may continue to follow the procedure it has followed 

in the past in securing rental space. 
. . 

Honorable Claude A. Williams, Page 3 (o-5524) 

Any intelligent inveetigation of the powers and authority of the 

Texas Uncmgloyment Compensation Commission must include an examination of 

certalu federal etatutea a8 well ae etate etatutse. In this particular 

phaee of etats activity-unemplopent inauranoe-federal sn8 state legislation are so interwoven aa to oonrrtltute a joint legielative undertaking 

by the FederalCon@'eee and the Texae Legielature. 

Your inquiry involves adminletrative details, (I, matter in the 

joint legislative endeavor in which State and Federal legislation Is most 

particularly Intermingled and in which the cooperation between the two 

governments is most pronounced. The extent of this cooperation will beccaue apparent from the statutes and acts which will be hereinafter quoted 

and referred to. 

The federal legislation on the subject will be found under Title 

42, Subchapter III, United States Code, under the title "Grants to States 

for Unemployment Cmpensatiou Administration." 

Section 501, under this title and subchapter, providea for a 

continuing appropriation of certain funds for the purpose of asslatIng the 

states in the administration of their unemployment compensation laws. 

Section 502 contains the following provisions: 

"(a) The (Federal Social Security) Board shall from 

tfme to time certify to the Secretary of the Treasury 

for payment to each State which has an unemployment cornpenaatlon law approved by the Board under sections 1610- 

1611 of Title 26, such amounta ae the Board determines 

to be necessary for the proper and efficient adminiEtZ%- 

tion of such law durm the fiscal year for which such 

payment is to be made. (Emphasis added). 

Section 503 of this title contains the following provisions: 

"(a) The Board shall make no certification for 

payment to any State unleee it finds that the law of 

such State2 approved by the Board under sections 16io1611 of Title 26, Includes provision for -- 

"(8) Effeotlve July 1, 1941, the expenditure of 

allmoneye received pursuant to section 5M of this 

title solely for the purposes and in the amounts found 

necessary by the Board for the prOper and efficient administration of such State law." (Emphasis added) 
Honorable Claude A. Williams, Page 4 (O-5524) 

The remaining provisions in this section provide that in the 

event the State agenog charged with the administration of the State Unemployment Compensation Law fails to carry out the requirements of the 

Sooial Seourity Board, the Board shall make no oertification for payment 

to the reoaloitrant State. 

The aDulloable arovlelone of our State law are found in the 

Unemployment C&peneation-Act, 

Statutes. 

Article 5221b, Vernon's Annotated 01~11 

Section 9 of Article 52211, contains the following provisione: 

“(a) 

the duty 

it shall 

Duties and Powers of Ccemnisaion: It ahall be 

of the Ccvmuission ,to administer this Act; and 

have power and authority to adopt, amend9 or 

rescind such rulea aDd regulations, to employ such persane, make such expenditures, require such reports, make 

such investigations, and take such other action as it 

deems neoeasary or suitable to that end. D 0 . 

"(I) State-Federal Cooperationr In the adminfstratian_of 

make euoh reports, in such form and containing such information ae the Social Security Board may from time to 

time find necessary to aBeure the correotness and verification of such reports; and - shall ccm witi the regulaSeotion llp Article 522113 (Section l3 in original Act) provides 

the following: 

"(a) Special Fuods There is hereby erea,ted in the 

State Treasury a apeoial fund to be known aa the Unemployment Compensation Administration Fund. All moneys which 

are deposited or paid into this fund are hereby appropriated 

and made available to the Cammission and ahall be continuously available to the Ccmmissfon for expenditure in 
Honorable Claude A. Williams, Page 5 (O-5524) 

accordance with the provisions of this Act, and shall 

not lapse at any time or be transferred to any other 

ma. All moneys in this fund whloh are received from 

the Federal Government or any sgenoy thereof ehall be 

expended ~0ls.l~ for the purpoees and in the munts 

found neoessary by the Sooial Security Board for the 

proper and efficient administration of this Act. This 

fund shall consist of all moneys appropriated by this 

State; all moneys received from the United States of 

America, or any agency thereof, including the Social 

Security Board; . . . .", etc. (Emphasis added) 

The State legislation, above quoted and referred to, reveals an 

unmistakable intent on the part of the Legislature to require the Texas 

Unemployment Compensation Ccmmission to cooperate to the fullest possible 

extant with the Federal Social Security Board in matters concerned with 

the administration of the Texas Unemployment Compensation Act. 

The reason why the Texas Legislature has required such extensive 

cooperation with the Federal Social Security Board becomes apparent when 

we realize that practically all funds used in the administration of the Unemployment Ccrmpensaticn Act are furnished by the Federal Gcvercment and 

that none are furnished by the State. Under the Federal enacimenta, which 

are quoted and referred to above, the Federal Government will continue to 

furnish these funds only 80 long as the Texas Commission complies with the 

rules and regulations of the Federal Social Security Board with regard to 

the expenditure of the moneys so furnished. 

Under Section 503, subsection (a), Title 42, U.S.C.A., the Social 

Security Board Is prohibited from making certification for payment to any 

State unless such State has enacted legislation which provides for the expenditure of funds furnished under Section 502 of that title "solely for the 

In ccmpllanoe with this requirement, the Texas Legislature has 

provided in subsection (a) of Section 11, Article 5221b, Vernon's Annotated 

Civil Statutes, that: "All moneys in this (Administration) fund which are 

received from the Federal Government or any agency thereof ahali be expended 

solely for the purposes and in the amounts found necessary by the Social 

Security Board for the prcuer and efficient administration of this Act." 

~Rnphasie added) 

That these provisions of the Federal and State laws result in 

placing in the Federal Social Security Board in Wsehington, absolute control 

over the securing of rental space by the Texas Unemployment Compensation 
Honorable Claude A. Wfllirnna, Page 6 (O-5524) 

Commission, was illustrated in the reoent case of Starling Realty Corporation v. State, 20 N.Y.S. (26) 270, 174 App. Div. 375, affirmed 1941, 36 

N.E. (26) 201, 286 N.Y. 272, re-ar ent and motion denied, 1942, 37 N.E. 

(2d) ~8, 286 N.Y. 696, 26 N.Y.S. F 

finned, 1941. 

26) 47, 261 A~~.DIV. 363, which was afIn the Starling case, the Division of Placement and Unsmployment 

Insurance of New York, which corresponds to our Unsmplopsnt Compensation 

Comieslon, had rented certafn premises fram the Starling Realty Corporation, and, thereafter, the Division of Placement and Unemployment Insurance, 

upon a determination of the Federal Social Seourfty Board that the space was 

no longer needed and that therefore no further funds would be provided for 

rental on those premises, oancelled its rental agreement or lease. This 

action by the Division was made pursuant to a clause In the leasing contract 

that the liability of the State was contingent upon the availability of 

moneys to pay such rental. 

The New York Court of Claims in denying the landlord's claim for 

rental, points out that: 

"The power of the (Federal Social Security) Board to 

provide necessary moneys for increasing the number of 

necessary offices or enlarging already existing offices 

would seem to be clear and it woc3.d seem equally clear that 

it could refuse to provide moneys for such offices as it 

might decide unnecessary in the administration of the law." 

The only logical conclusion to be deduced from this holding~and 

the quoted provisions of the Federal and State lam is that absolute ~dlscretion over the amount of rental space needed by the Texas Unemployment Compensation Cmmission and the amount of money ,to he spent for rental has been 

placed under our Unemployment Ccaupensation Aat in the Federal Social Security 

Board in Washington. 

Senate BIU. NO. 266 (Chap. 258, Acts 1943, M3tb Leg.) on the o"ther 

hand places almost an equal amovmt of dfseretion over the procurement of 

rental spaoe by all State agencies sod departments in the Texas Board of Control. we quote the first two sections of Senate Bill No. 266, as folicws: 

"Section I. Hereafter all departients and agencies 

of the State Government, when rental space is needed for 

carrying on the essential functions of such agencies or 

deparimenti of the State Government, shall submit to tie 

State Board of Control a request therefor, giving tJ'&e 

type, kind, and size of 'building meded, together with 

any otier necessary description, end stat%ng tie purpose 

for which it will be used and the need tlterefor. 
Honorable Claude A. Williama, Page 7 (O-5524) 

"Section 2. The State Board of Control, uuou 

receipt of such request, and If the money has been 

made available to pay the rental thereon, and If in 

the discretiou of the Board such mace is needed, 

shall forthwith advertise in a uewsuauer. which has 

been regularly published and cfm&&d in the city, 

or town, where auoh rental space is eou&t, for bids 

on such rental spaoe, for the uses indicated and for 

a period of not to exoeed two years. After euah bids 

have been received by the State Board of Control at 

its principal office in Austin, Texas, and publioly 

opened, the award for such rental contract will be 

made to the lowest and best bidder, and upon such 

other terms as may be agreed upon. The terms of the 

contract, together with the notice of the award of 

the State Board of Controlwillbe submitted to the 

Attorney General of Texas, who will oause to be prepared and executed in accordance with the tenus of 

the agreement, such oontract in quadruplicate; one 

of which will be kept by each party thereto, one by 

the State Board of Control, and one by the Attorney 

General of Texas. The parties to such contract will 

be the departient or agency of the government using 

the space as lessee and the party renting the spaoe 

88 lessor." 

Insofar as the Texas Unemployment Ccnapensation Comnlssion is 

concerned, the discretion which Senate Bill No. 266 plaoes inthe Board 

of Control would be in direct conflict with the discretion, which we have 

already seen, has been placed in the Bederal Social Security Board. Since 

practically all funds used in the administration of the Unemployment Conpensation Act are furnished by the Federal Government and its agencies, and 

none is furnished by the State, the provisions of Senate Bill No. 266, if 

held applicable to the Texas Unemployment Caapensation Commission, would 

create an unbridgeable conflict. Quite obviously, the discretion over the 

amount of space and the price to be paid for it oannot rest both in the Board 

of Control and in the Social Security Board. One or the other must have the 

final word. 

A simple answer to this stalenuate, may be found in the second 

clause of Section 2 of Senate Bill No. 266, whioh provides that the Board 

of Control's aotion is contingent upon the availability of moneys to pay 

rental upon the required space. As we have seen, the only moneys available 

to the Texas Unemployment Ccaapensation Commlsslon for rental apace are those 

furnished for the payment of rental upon space approved by the Social Security 

Board. And it might be held that since no moneys are available, the Boar3 of 

Control has no jurisdiction. 
Honorable Claude A. Williams, Page 8 (O-5524) 

However, we prefer not to reat our opinion solely upon this 

tenuous technicality, but rather upon accepted legal principles which 

we believe point to a proper solution of the apparent conflict. 

Senate Bill No, 266 ooutains no repeal of any of the provisious 

of the Texas Unemployment Ccenpensation Acts nor for thatnatter of my other 

previous leglalative enaotmente. It contains neither a specific nor a gsnera1 repeal of prior lsgislation. In order to reach the conclusion that 

this Bill, in fact, repeals any portion of the Unemployment Canpensatlon 

Act, we would be required to rely upon a repeal by implication. As pointed 

out in Texas Jurisprudence, repeals by implication are not favored. 

"According to numerous pronouncsments of the Texas 

courts, the repeal of statutes by implication is never 

favored or presumed, The two acts will persist unless 

the conflicting provisions are so antagonistic and repu@mnt that both cannot stand. Where there is no express 

repeal, the presumption is that in emoting a new law the 

Legislature intended the old statute to remain in operation." 

39 Tex. Jur. 140, and cases cited iu tie footnotes. 

Under the rules above stated, we must presume that in enacting 

Senate Bill No. 266 and in makiug uo express repeal of existing legislation, the Legislature intended that the couflieting provisions of the Uhemployment Compensation Act remain in effect. Texas Jurisprudenoe further 

points out that; 

“If by any reasonable construction two sets or 

statutory provisions can be reconciled and so oonstrued that both may s+tsnd, one willnotbe held to 

repeal the other. Especially where tie older law is 

particular and is expressed in negative terms, and 

the later statute is general, a construotion will be 

sought which harmonizes them and leaves both in concurrent operation." 39 Tao Jur. 141-2, and oases 

cited in the footnotes. 

We direct your attention also to the rule that a general act does 

not repeal a special or particular law. The entwtment of a general law does 

not ordinarily opera,te as a repeal of a particular or special law, by implication, although both relate to the same sub$eot matter. On *he contrary, 

both statutes are permitted to stand, and the general law is applicable to 

all cases not embraced by the speclfio sot. In other words, the partioular 

act Is eonstrued as constituting an exception to the general law. This is 

said to be a settled rule of construction based upon tie presumption that a 

s~~~ffi(: s&tu,t;eyiden~*s t&e jxrteamthm c.2 +&h IngS.slas.t;Ls"e more e?sarJ$ ctb.Rn 

a genera2 one, ma ~e;rCfme ahcd.a eoE,t~'~3i., jg 'Fez. @T&r. i4945c; Tc7msena 

y. Terrell, 118 Tern. 463, 16 S,W. (2&) ~063; Ellis v. Batits, 26 Tex. 703; 

Cole v. State, 106 Tex. 472, 170 S,W. ;la36, dimfsehg errcr 1.63 S.W. 353. 
. 

Honorable claude A. Willimm, Page 9 (O-5524) 

V. Bette, 26 Tex. 703; Cole Y. State, 106 Tex. 472, 170 S.W. 1036, 

dismlsalng error 163 S.W. 353. 

Under them rulee of statutory oonetruation, the Texae Ummployment Compensation Aot will be held oontsolling in mattere relating to the 

eeourlng of rentalspaoe by the Unemployment Cmupeneatlon Ccem~Ieelon, while 

senate BIU HO. 266 IS oontrolling in mattere regarding rental spaoe needed 

by other &epar+menta or agenclea, which are not controlled by special or 

particular statutes. 

You are therefore advised, and it Is the opinion of this department, that the provisions of Senate Billlo. 266 40 not apply to the Texas 

Unemployment Cmpensation Ccamission. 

Trusting that ve have fully answered your inquiry and that you 

will call upon ue if we oan be of further service, we are 

Yours very truly 

By /a/ Peter Maniscalco 

Peter Manlscalco 

Assistant 

Pwff 

APPROVKDAIJG 30, 1943 

/e/Gerald 0. Mann 

Al?lS~QEliEBALOFTEXAS 

APPROVED 

OPIBlIOly 

COMMIm 

BY /sbm 

Chalnmn