September 4, 1953 

Hon. Tom Scaly Opinion No. S-98 

Chairman, Board of Regents 

The University of Texas Rt : Authority of The University 

Austin, Texas of Texas and its branches 

to expend funds appropriated 

by the General Appropriation 

Bill for the biennium ending 

August 31, 1955, for the purposts of providing 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 an opinionreads tn part: 

“Your opinion is respectfully requested 

upon whether or not funds appropriated to The 

‘University of Texas and its branches by House 

Bill No. 111 passed by the General Appropriation Bill for the biennium ending August 31, 

1955, may be used on and after September 1, 

1953, for the purpose of providing air conditioning of existing 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, at p. 1947, approved June 28, 1951), a provision prohibiting the expenditure of any funds appropriated to agencies of 

higher education, including The University of Texas, for the purchase of new 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. in effect, that numerous budget requests had been presented to 

the Legislature for the appropriation of funds for air conditioning State buildings and purchase of air conditioning machinery and room air conditioning units, and that it was tconomtcally unsound to air condition State buildings, except 

new construction, or to purchase air conditioning machinery 

or units for use therein. Therefore the policy of the State of 

Texas was not to permit 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 in the General Appropriation Act (Ch. 81, Acts 53rd 

Leg., 1953, p. 127) as to the expenditure of funds by agencies 

of higher education or any other governmental department or 

agency for the purpose of air conditioning State buildings, 

either old or new, or for the purpose of p’urchasing air. conditioning units for uat therein, and expressly omitted the prohibitory clause containtd,in Section 37, Article V, of the Gtn- 

~&ral Appropriation Act of?~the 52nd Legislature. 

The legal proposition here involved is whether the 

expenditure of funds under the General Approprtatton Act of 

the 53rd Legislature is governed by the directive contained in 

H.C.R. No. 38 of the 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 of Texas), but 

there is a marked distinction between a law and a resolution. 

As was stated in Conlty v. United Daughters of the Confederacy, 

164 S.W. 24, 26 (Ttx. Civ. App. 1913, error ref.): 

“The chief distinction between a resolution 

and a law stems to b,e that the former is used 

whenever the legislative body passing it wishes 

to merely express an opinion as to some given 
Hon. Tom Staly, page 3 (S-98) 

matter or thing, and is only to have a temporary 

effect on such particular thing; while by the latter it, is intended to permanently direct and control matters applying to persons or things in gtntral. . . . n 

A concurrtct resolution of the Legislature does 

not have the effect of a statute. Terre11 Wells Swimming 

Pool v. Rodriguez, 182 S.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). 

It is significant that tht General Appropriation 

Act of the 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 of higher education. It is 

a rule of statutory construction that the mere fact that significant words are omitted from the re-enactment or amtndmtnt of a statute imports a conclusive 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 of privilege case, no writ history). 

In Terre11 V. King, 118 Tex. 237, 14 S.W.2d 786 

(1929), it was held that the Legislature, which had enacted a 

law making an appropriation for its contingent expenses, could, 

by joint resolution approved by the Governor, direct the txptnditure of a portion of the appropriation in financing a ltgislativt committee which was lawfully created, and that since 

the purpose was of a temporary nature only, the joint resolution was the proper method of authorieing ~tht expenditure 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 a joint resolution of both Houses, approved 

by the Governor, reflects the command and will 
Hon. Tom Staly, page.4 (S-98) 

of the State in one of the modes prescribed 

by the Constitution and is as binding as a statutt. ‘I 

The Court cited no authorities in support of the quoted dictum, but it is our opinion that such dictum is not controlling 

in view of the action of the Sunreme Court in refusint the P 

application for writ of error in Terre11 Wells Swimming Pool 

v. Rodriguez, supra, in 1944. 

In Moshtim v. Rollins, 79 S.W.2d 672 (Tex. Civ. 

App. 1935, error dism.), it was held that a resolution passed 

in aid of a statute falls when such statute is declared unconstitutional. Here the resolution passed in aid of the General 

Appropriation Act of the 52nd Legislature, by analogy must 

cease to have any effect upon the expiration of the General Appropriation Act of the 52nd Legislature. The Legislature, 

through a concurrent resolution, may express a policy which 

would control the interpretation of statutes passed by that Legislature only. 

In view of the fact that H.C.R. No. 38 is a mere 

expression of an opinion by the 52nd Legislature that the expenditure of funds for air conditioning of buildings under the 

control of agencies of higher education was economically unsound at the time of the passage of the General Appropriation 

Act for the biennium commencing September 1, 1951, and since 

as a matter of law a resolution has only a temporary effect as 

to such appropriation, it is our opinion that the 53rd Legislature did not consider such concurrent resolution to be binding 

upon or express the opinion of that 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 to be used therein. 

SUMMARY 

Funds appropriated to The University of 
Hon. 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 of providing 

air conditioning for existing State building’s at 

such institutions or for the purchase of room 

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 

CKR :da 

. . . 

‘,. 

‘.’ 

~:. 

I