September 4, 1953

Hon. Tom Scaly Opinion No. S-98 Chairman, Board ofRegents The University of Texas Rt : Authority ofThe University Austin, Texas ofTexas and its branches to expend funds appropriated by the General Appropriation Bill **for** the biennium ending August 31, 1955, for the purposts ofproviding air conditioning for existing State buildings at such institutions or for the purchase of room Dear Mr. Sealy: air conditioning machinery or units. Your request for anopinionreads tnpart: “Your opinion is respectfully requested upon whether or not funds appropriated to The

‘University ofTexas and its branches by House Bill No. 111passed by the General Appropriation Bill for the biennium ending **August 31,**  1955, may be used onand after September 1, 1953, for the purpose ofproviding air conditioning ofexisting buildings at such respective institutions or for the purchase of **room air**  conditioning machinery or units.” The 52nd Legislature included within the General Appropriation Act (Sec. 37, **Art.** V, Ch. 499, Acts 52nd Leg., 1951, atp. 1947, approved June 28, 1951), aprovision prohibiting the expenditure of any funds appropriated to agencies of higher education, including The University of Texas, for the purchase ofnew or additional air conditioning or refrigerating equipment for any purpose (with certain exceptions not here ptr-Hon. Tom Scaly, page 2 (S-98)

tintnt) during the biennium beginning September 1, 1951. The **same** Legislature also passed House Concurrent Resolution No. 38, approved May 10, 1951, which declared. ineffect, that **numerous** budget requests had been presented to the Legislature for the appropriation offunds for air conditioning State buildings and purchase of air conditioning machinery and room air conditioning units, and that itwas tconomtcally unsound to air condition State buildings, except new construction, or topurchase air conditioning machinery or units for use therein. Therefore the policy ofthe State of Texas was not topermit the use of State funds for air conditioning State buildings, except new construction, or for the purchase of room air conditioning machinery or units.

The 53rd Legislature failed to include any prohibition inthe General Appropriation **Act** (Ch. 81,Acts 53rd Leg., 1953, p. 127) as tothe expenditure offunds by agencies ofhigher education or any other governmental department or agency for the purpose of air conditioning State buildings, either old or new, or for the purpose ofp’urchasing air. conditioning units for uat therein, and expressly omitted the prohibitory clause containtd,in Section 37,Article V, ofthe Gtn- ~&ralAppropriation Act of?~the52nd Legislature.

The legal proposition here involved is whether the expenditure offunds under the General Approprtatton Act of the 53rd Legislature is governed by the directive contained in H.C.R. No. 38ofthe 52nd Legislature. I The Constitution clearly rtcognists the right of the Legislature to express its will by resolution **(Art. III,**  Secs.,34, 38; Art. IV, Sec. 15, Constitution ofTexas), but there is a marked distinction between a law and a resolution. As was stated in **Conlty** v. United Daughters ofthe Confederacy, 164S.W. 24, 26 (Ttx. Civ. App. 1913, error ref.):

“The chief distinction between a resolution and alaw **stems** tob,ethat the former is **used** whenever the legislative body passing itwishes tomerely express an opinion as to some givenHon. Tom Staly, page 3 (S-98)

matter or thing, and is only to have atemporary effect on such particular thing; while by the latter it,is intended topermanently direct and control matters applying topersons or things in gtntral.

. .. n A concurrtct resolution ofthe Legislature does not have the effect of a **statute.** Terre11 Wells Swimming Pool v.Rodriguez, 182S.W.2d 824, 826 (Ttx. Civ. App. 1944, error ref.) and the general rules governing the interpretation of **statutes** art likewise applicable to resolutions. (2 Sutherland on **StAtutory** Construction, 262).

Itis significant that tht General Appropriation Act ofthe 53rd Legislature does not contain the prohibitory provision against the expenditure of appropriated funds for the purpose of air conditioning buildings or the purchase of air conditioning units for agencies ofhigher education. It is arule of **statutory** construction that the mere fact that significant words are omitted from the re-enactment or amtndmtnt of **a** statute imports aconclusive presumption that the Le~gislaturt intended to exclude the object theretofore accomplished by the abandoned words. San l$arcos Baptist Academy v. Burgess, 292 S.W. 626 (Ttx. Civ. App. 1927, plea ofprivilege case, nowrit history).

In Terre11 V.King, 118Tex. 237, 14S.W.2d 786 (1929), itwas held that the Legislature, which had enacted a law making an appropriation for its contingent expenses, could, byjoint resolution approved by the Governor, direct the txptnditure of aportion ofthe appropriation in financing altgislativt committee which was lawfully created, and that since the purpose was of atemporary nature only, thejoint resolution was the proper method of authorieing ~thtexpenditure of the funds which had been previously appropriated in accordance with law. The Court then said:

“It is no longer an open question in Texas that ajoint resolution ofboth Houses, approved by the Governor, reflects the command andwillHon. Tom Staly, page.4 (S-98)

ofthe State in one ofthe modes prescribed by the Constitution and is as binding as a statutt. ‘I The **Court** cited no authorities in support ofthe quoted dic**tum,** but itis our opinion that such dictum is not controlling in view ofthe action ofthe Sunreme Court in refusint the P application for writ oferror in Terre11 Wells Swimming Pool v. Rodriguez, supra, in 1944.

InMoshtim v. Rollins, 79S.W.2d 672 (Tex. Civ. App. 1935, error dism.), itwas held that a resolution passed in aid of a statute falls when such statute is declared unconstitutional. Here the resolution passed in aid ofthe General Appropriation Act ofthe 52nd Legislature, by analogy **must** cease to have any effect upon the expiration ofthe General Appropriation Act ofthe 52nd Legislature. The Legislature, through a concurrent resolution, may express apolicy which would control the interpretation of **statutes** passed by that Legislature only.Inview ofthe fact that H.C.R. No. 38is amere expression of an opinion by the 52nd Legislature that the expenditure offunds for air conditioning ofbuildings under the control of agencies ofhigher education was economically unsound atthe time ofthe passage ofthe General Appropriation Act for the biennium commencing September 1, 1951, and since as a matter oflaw a resolution has only atemporary effect as to such appropriation, it is **our** opinion that the 53rd Legisla**ture** did not consider such concurrent resolution to be binding upon or express the opinion ofthat body in enacting the General Appropriation Act for the biennium beginning September 1, 1953, having purpost,ly omitted therefrom any-provision .prohibi$ing any State agency or department from expending appropriated funds for the purpose of either air conditioning State buildings or purchasing air conditioning units tobe used therein. SUMMARY Funds appropriated toThe University ofHon. Tom Staly, page 5 (S-98)

Texas and its branches by.the General Appropriation Bill for the biennium ending August 31, 1955, may be used for the purpose ofproviding air conditioning for existing State building’s at such institutions or for the purchase ofroom air conditioning machinery or units. APPROVED: Yours very truly, Mary K. Wall JOHN BEN SHEPPERD Reviewer Attorney General Burnell Waldrtp Reviewer Robert S.Trotti First Assistant John Ben Shtpptrd Attorney General By c%u C. K. Richards

Assistant

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