Honorable ClaudeA. Williams Chairman

and Executive

Direotor Texas Unemployment

Ccunpewatlon

Commission Aus tin, Texas

Dear Sir: Opinion No. O-5524 IiS?: WhetherSenateBill No. 266 appliesto rental space leased by the Texae UnemploymentCmpenaatlon

Comniseion.

Thla will acknowledge reoelptof~your letterof August l.3, 1943, whereinyou have requeeted the opinionof 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

"YourDepartMmt recently Issued Opinion

Bo. O-927 relative

to the effect of SenateBillHo. 266, Regular Seseionof the 48th Legislature, upon the,payment

of current rentals

under existingleases. We presume,in view of the legislative

policy ae expressed in several

recent appropriation

bills, that SenateBill 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 paymentof rentals, but in order to clarifythe 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 leasesou 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 directyour attention to tie fact that the TexasUnamployment

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 receivedfrom the FederalGovernment. These funds are not grantedto theHonorable ClaudeA. Williame, Page 2 (O-5524)

State as ouch, but rather are grantedto +&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 receivedfrom the Federal Government or any Agency thereofshall be expended eolely for the purposes and in the amounts foundnecessary by the Social Security

Board for the proper and efficientadministration

of thisAct.' The terms of Title III under which thismoney is granted providethat the administrativefund shallnot be granted by the Social Securlty Board unless it is found that all moneys received from the Board are expendedsolely for the purposes and in the amountafoundnecessary 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

requestyour opinionas to whether or not SenateBillHo. 266, Regular Session of the 48th Legislature,

is applicable

to paymentof rentalby this Ccmmission out of funds receivedfrom the FederalOovernment."

In our opinion

No. O-5427,

we advisedthe State Canptroller of PublicAccountsthat:

"Any new lease or rental contract entered into after the passageof SenateBill 266 (Acts 1943, 48th Leg., effective

May 7, 1943)

muet be executedIn 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 thatmode and must conform to these requirements." (Emphasis

added)

If the TexasUnemployment Compensation

Commission

ia one of the affected

agencies

or departmenta

thereinreferredto, it would follow that the provisions

of SenateBill Ho. 266 apply to rental space neededby it. If not, the Commission may continueto follow the procedure it has followed in the past in securing rental space.. .

Honorable

ClaudeA. Williams, Page 3 (o-5524)

Any intelligent

inveetigation

of the powers and authority of the TexasUncmgloyment

Compensation

Commission

must include

an examination

of certalu federaletatutea a8 well ae etate etatutse. In this particular phaee of etats activity-unemplopent inauranoe-federal sn8 state legislationare so interwoven aa to oonrrtltute

a joint legielative undertaking by the FederalCon@'eee and the Texae Legielature.

Your inquiryinvolves adminletrative

details, (I,

matter in the joint legislative

endeavorin which State and Federal legislation Is most particularly

Intermingled

and in which the cooperation between the two governments

is most pronounced. The extentof this cooperation will beccaue apparentfrom 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 "Grantsto States for Unemployment

Cmpensatiou Administration."

Section 501, under this titleand subchapter, providea

for a continuing

appropriation

of certain funds for the purposeof asslatIng the states in the administration of theirunemployment 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 unemploymentcornpenaatlon

law approved

by the Board under sections 1610- 1611 of Title 26, such amountaae the Board determines to be necessary

for the properand efficient adminiEtZ%- tion of such law durm the fiscalyear for which such payment is to be made. (Emphasis added).
Section 503 of this title contains the following

provisions:
"(a) The Board shallmake no certification for payment to any State unleee it finds that the law of such State2 approved by the Board under sections16io1611 of Title 26, Includes provision

for --

"(8) Effeotlve

July 1, 1941, the expenditure of allmoneye received pursuantto section 5M of this title solely for the purposes and in the amounts found necessary

by the Board for the prOperand efficientadministration

of such State law." (Emphasis added)Honorable ClaudeA. 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 shallmake 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, containsthe 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 rescindsuch rulea aDd regulations, to employ such persane,make such expenditures, requiresuch reports, make such investigations, and take such other action as it deems neoeasary

or suitableto 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 necessaryto 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 apeoialfund 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

inHonorable ClaudeA. Williams, Page 5 (O-5524)

accordance

with the provisions of thisAct, and shall not lapseat any time or be transferred to any other
ma. All moneys in this fund whloh are receivedfrom the FederalGovernment or any sgenoythereof ehall be expended

~0ls.l~ for the purpoees

and in the munts foundneoessary

by the Sooial Security Board for the proper and efficient administration

of thisAct. This fund shall consistof all moneys appropriated by this State; all moneys receivedfrom the United States of America,

or any agency thereof, including

the Social Security

Board;

. . . .", etc. (Emphasis added)

The State legislation, above quotedand referredto, revealsan unmistakable

intenton the part of the Legislature to requirethe 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 reasonwhy the Texas Legislature has requiredsuch extensive cooperation

with the FederalSocial Security Board becomesapparent when
we realize that practically all funds used in the administration of the Unemployment

Ccrmpensaticn

Act are furnished

by the FederalGcvercment and thatnone are furnished by the State. Under the Federal enacimenta, which
are quotedand referred to above, the FederalGovernment will continueto 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 frommaking certification for payment to any State unless such State has enacted legislation which providesfor the expenditure

of funds furnished

under Section 502 of that title "solelyfor 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: "Allmoneys in this (Administration) fund which are receivedfrom the FederalGovernment or any agency thereof ahali be expended solely for the purposes and in the amounts foundnecessary by the Social Security

Board for the prcuer and efficient administration

of thisAct." ~Rnphasie

added)

That theseprovisions of the Federaland State laws result in placing in the Federal Social Security Board in Wsehington, absolute

control
over the securing

of rental space by the TexasUnemployment CompensationHonorable ClaudeA. 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, affirmed1941, 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, whichwas afIn the Starling

case, the Divisionof Placement and Unsmployment Insurance

of New York, which corresponds to our Unsmplopsnt Compensation Comieslon, had rented certafn premisesfram the Starling RealtyCorporation, and, thereafter, the Divisionof Placement and Unemployment

Insurance, upon a determination of the Federal Social Seourfty Board that the spacewas no longer

needed and that therefore no further fundswould be providedfor rentalon thosepremises, oancelled

its rental agreement or lease. This actionby the Division was made pursuantto 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 denyingthe 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

officesor enlarging alreadyexisting

offices would seem to be clear and it woc3.d seem equallyclear that it could refuse to provide moneys for such officesas it might decideunnecessary in the administration of the law."

The only logical

conclusion

to be deduced from this holding~and the quotedprovisions of the Federaland State lam is that absolute~dlscretion over the amount of rental space needed by the TexasUnemploymentCompensationCmmission and the amount of money ,to he spent for rental has been placedunder our Unemployment Ccaupensation

Aat in the FederalSocial Security Board in Washington.

SenateBIU. NO. 266 (Chap. 258, Acts 1943, M3tb Leg.) on the o"ther hand placesalmost an equal amovmt of dfseretion over the procurement of rental spaoeby all State agencies sod departments

in the Texas Board of Control. we quote the first two sections of SenateBill 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 Controla 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 ClaudeA. Williama, Page 7 (O-5524)

"Section

2. The State Board of Control, uuou receiptof 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

advertisein 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 Controlat its principal

office in Austin, Texas, and publioly opened,the award for such rental contract will be made to the lowestand 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

Generalof Texas,who will oause to be prepared and executedin accordance with the tenus of the agreement,

such oontractin quadruplicate; one of which will be kept by each party thereto, one by the State Board of Control, and one by the Attorney Generalof Texas. The parties to such contract will be the departient

or agency of the government using the space as lesseeand the party rentingthe spaoe 88 lessor."

Insofaras the TexasUnemployment Ccnapensation

Comnlssion

is concerned,

the discretion

which SenateBill No. 266 plaoes inthe Board of Control

would be in direct conflict with the discretion, which we have alreadyseen,has been placed in the BederalSocial Security Board. Since practically

all funds used in the administration of the UnemploymentConpensation

Act are furnished

by the FederalGovernment and its agencies,

and
none is furnished

by the State, the provisions of SenateBill No. 266, if held applicable

to the TexasUnemployment 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 Controland in the Social Security Board. One or the othermust have the final word.

A simpleanswer to this stalenuate, may be found in the second clauseof Section 2 of SenateBill No. 266, whioh providesthat the Board of Control's

aotion is contingent upon the availability of moneys to pay rentalupon the requiredspace. As we have seen, the only moneys available to the TexasUnemployment Ccaapensation

Commlsslon

for rentalapace are those furnished

for the paymentof rentalupon 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 ClaudeA. Williams, Page 8 (O-5524)

However,

we prefernot to reat our opinionsolelyupon this tenuoustechnicality, but ratherupon acceptedlegalprinciples which
we believe

point to a proper solution of the apparent

conflict.

SenateBill No, 266 ooutains no repeal of any of the provisious of the Texas Unemployment Ccenpensation

Acts nor for thatnatter of my other previousleglalative enaotmente. It contains neithera specific

nor a gsnera1 repeal of prior lsgislation. In order to reach the conclusion that this Bill, in fact, repealsany portionof the Unemployment Canpensatlon Act, we would be required to rely upon a repealby 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 favoredor 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 SenateBill No. 266 and in makiug uo expressrepeal of existinglegislation, 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 negativeterms,and the later statute is general,a construotion will be sought which harmonizes

them and leaves

both in concurrentoperation." 39 Tao Jur. 141-2,and oases cited in the footnotes.

We directyour attention also to the rule that a generalact does not repeala specialor 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 settledrule of construction based upon tie presumption that a s~~~ffi(:

s&tu,t;e

yiden~*s

t&e jxrteamthm

c.2 +&h IngS.slas.t;Ls"e

more e?sarJ$ctb.Rn
a genera2one, ma ~e;rCfme ahcd.aeoE,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 1.63S.W. 353..

Honorable

claudeA. 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 TexaeUmmployment Compensation

Aot will be held oontsolling in mattererelating to the eeourlng

of rentalspaoe by the Unemployment Cmupeneatlon

Ccem~Ieelon,

while

senate BIU HO. 266 IS oontrolling in mattere regarding rental spaoeneeded by other &epar+menta or agenclea,

which are not controlled by specialor 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. Trustingthat ve have fully answered your inquiry

and that you will call upon ue if we oan be of furtherservice, 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