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THE AITORNEY GENERAL
OF TEXAS

AUSTIN 11, TEXAN

October 11; 1957

Honorable Price Daniel, OpinionNo. WW-275. Governor, State of Texas, Capitol Station, Re: Whether a proposed Bill to Austin, Texas be submitted to the Special Session of the Legislature
on October 14th requires certificationby the Comptroller of PublicAccounts under the provisions of Section @a of Article III Dear Governor Daniel: of the Constitution of Texas.

You have requested an opinion concerninga proposed Bill to be submitted to the Special Session of the Legislature
on October 14th. Your specific question is whether thisproposed Bill requires certificationby the Comptroller of Public Accountsunder the provisions of Section &a of Article III of the Constitution of Texas.

The purpose of this legislation is stated in Section 1 as follows:

"Section 1. PURPOSE OF ACT. The purpose of this Act is to effectuate the mandatory terms and provisions of Article 16, Section 59 (a) of the Constitution of Texas to the end that the vital water resources of the State will be conserved, developed, stored,preserved and distributed in
a manner beneficial and useful to the people of Texas and future generations. It is hereby declared that this Act is essential to the accomplishmentof such purpose. 1.tis declared, further, that the conservation,developmentand beneficialuse of thewaters of this State are public rights and duties and are necessary to protect and promote the health, safety and general welfare of the people."
Subdivision (j) of Section 3 of the proposed Bill .ides:.’

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Honorable Price Daniel, Page 2 (w-275).

"(j)TRANSFER OF FUNDS TO PLANNINGDIVISION. Funds heretofore appropriated to the Board of Water Engineers in line Items 29 through 32 of House Bill 133, Acts 55th Legislature, 1957, are hereby transferred to the PlanningDivision to be used for the purposes stated in such line items, and the Board may transfer any other of its appropriated funds to the PlanningDivision necessary to accomplish the purposes of this Act.
"Thatportion of said House Bill No. 133 immediatelypreceding Item Number 33 in the appropriation to the Board of Water Engineers and reading 'WatershedPlanning - None of themoney appropriated in Items 33 through 39 below for Watershed Planning shallbe.expendeduntil and unless the ConstitutionalAmendmentproposed by H.J.R. No. 3, of the 55th Legislature, is duly adopted by the voters of Texas' is hereby repealed. The sums appropriated in Items 33 through 39 of the appropriation for the Board contained in the saidHouse Bill No. 133, totaling $100,240 for the current biennium, are hereby transferi.ed to the Planning Division in a lump sum to pay the cost of performing the duties Imposed by this Section 3, including wages, salariesand other expenses, for the remainder of the currentbiennium ending August 31, 1959.

"The sum of $500,000.00appropriated to the Texas Prison System in that portion of House Bill No. 133, Chapter 385, General and Special Laws of the 55th Regular Session,page 1051, entitled 'TexasPrison System--ContingencyAppropriation', is hereby transferred to the PlanningDivision of the Board of Water Engineers to be used in accomplishing the purposes of this Act."
Section 49a of Article III of the Constitutionof Texas prohibits the valid enactment of any bill containing an appropriationwhich does not contain a certificateby the Comptroller of PublicAccounts that the amount appropriated is within the amount estimated to be available in the affected funds. Attorney General's OpinionWW-102 (1957). If subdivision (j)of Section 3 of the proposed legislation constitutes an appropriationof money, Section 49a of Article III would require a certificationof the Comptrollerbefore the proposed legislation could be enacted into law.Honorable Price Daniel, Page 3 (m-275).

Section 6 of ArticleVIII of the Constitution of Texas provides:

"Nomoney shall be drawn from the Treasurybut in pursuance of specific appropriationsmade by law;
nor shall any appropriationof money be made for a longer term than two years, exceptby the first legislature to assembleunder this Constitution, which may make the necessary appropriations to carry on the governmentuntil the assemblage of the slxteenth Legislature.'
This constitutionalprovision controls all appropriations from the State Treasurv and monev not snecificallsannropriated by the Legislature ¬ be withdrawn from the"Trkasury. Picklev. Finley 91 Tex. 484, 44 S,W. 480 (1898);Lightfootv. Lane, 104 Tex. 447, 140 S.W. 89 (1911);Attorney General's OpinionWW-102 (1957).

In consideringa similar question, it IS stated in Attorney General's Opinion O-6193 (1945) that a provision relative to the transfer of unexpended balances "ismerely an alternativemethod of allocation. This provision in no way takes additionalmoney out of the State Treasury; rather it merely permits the fundswhich have alreadybeen taken out of the Treasury by Section 6 of House Bill No. 3, and by Section 1 of Article 13 of House Bill No. 176, to be.expended for purpos,es other than those for which theywere initially encumbered.

The provisions of subdivision (j) of Section 3 of the proposed legislation above quoted does not take additional money out of the State Treasury as provided in Section 6 of ArticleVIII of the Constitutionof Texas. It merely permits the fundswhich have previouslybeen appropriated to be expended for purposes other than those for which theywere initially appropriatedand, therefore,does not constitute an appropriationwithin the meaning of Section 49a of Article III of the Constitution of Texas.

In subdivision language: addition to making allocationsand t~ransfers,

(j)of Section 3 contains the following additional

"In addition to any funds made availableby the Legislature, the PlanningEngineer with the approval of the Board is authorized to contract for, receive or accept money from anyone, or from any agency,political subdivision,or other legal entity, and may thenuse suchmoney to carry intoHonorable Price Daniel, Page 4 (WW-27.5).

effect the duties requiredby this Section. The money thus obtained shallbe depositedby the PlanningEngineer in the State Treasury as a special fund and saidmoney may be used by the PlanningDivision for any of Its purpose8, includingwages, salaries and other expenses."

These provisions require the deposit into the State Treasury of moneys received from individuals,agencies,politlcal subdivision,and other legal entities, and provides that suchmoney may be used by the PlanningDivision for any of its purposes includingwages, salaries and other expenses. Since the purpose of an appropriation is to make available for expenditure moneys In the Treasury, it is our opinion that the last paragraph of subdivision (j)of Section 3 constitutesan appropriationrequiring the certificate of the Comptroller of PublicAccountsunder the provisions of Section &a of Article III of the Constitution of Texas. The proposed legislation submittedwith your request therefore,will require the certificate of the Comptroller of PublicAccountsprovided for in Section @a of Article III of the Constitution of Texas. However, inasmuch as the Legislature only appropriated the amount of the funds thatwill be deposited In such special fund, the Comptrollerwould be required to certify that such sums so appropriated are available.

SUMMARY

Proposed legislation transferringand allocating variousmoneys appropriatedby House Bill 133, Acts of the 55th Legislature, 1957, does not constitutean appropriation requiring the certificateof the Comptroller of PublicAccounts that the amount appropriated is within the amount estimated to be available in the affec?ed funds. However, the provisionsHonorable PriceDaniel, Page 5, (WW-275).

providing thatmoney received and deposited in the State Treaaury may be used by the Water Resources Planning Commission created by the proposed legislation constitutesan appropriation of money in the State Treasury and would require the certificateof the Comptroller of PublicAccounts. The Comptrollerwill be required to certify that this fund Is available.

Yours very truly,

WILL WILSON Attorney General of Texas

Assistant
JR:zt:pf

APPROVED:

OPINION COMMITTEE

Geo

. P. Blackburn, Chairman W. V. Geppert B. H. Timmins, Jr. C. K. Richards

REVIEWED FOR THE ATTORNEY GENERAL
By: Wm. V. Geppert