HE J~TFORNEY.GENERAL 

OFTEXAS 

Honorable Bob Bullock 

secretary of state 

State of Texas 

Capitol Building 

Austin, Texas 78711 

Dear Mr. Bullock: 

Opinion No. 1100 

Re: Authority of Legislature to appropriate money at a future date 

to pay expenses already incurred 

in necessary preparations by 

county committees of political 

parties for holding primary elections. 

Your March 23, 1972 request for an opinion asks whether at a 

future time the Legislature may validly appropriate money to pay expenses already incurred in preparation for primary elections by county 

committees of political parties. It is our opinion the Legislature may 

not validly make such an appropriation. 

The State Constitution requires as a requisite to expenditure of 

state funds not only an appropriation, but also pre-existing law. Article 

III, Section 44, provides: 

“The Legislature shall not grant . . . 

by appropriation or otherwise, any amount of money 

out of the Treasury of the State, to any individual, 

on a claim, real or pretended, when the same shall 

not have been provided for by pre-existing law; . . , I’ 

In the recent opinion of the Texas Supreme Court in Bullock v. 

Calvert (No. B-3245, March 8, 1972) the Court stated in reference to 

your attempt to provide a substitute for the unconstitutional filing fee 

assessment system of financing, 

7, no specific commission to underwrite 

the election costs can be implied in the face of those 

contrary enactments . ” (opinion, p. 11). * 

+ Page references are to the unpublished opinion of the Court. 

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Honorable Bob Bullock, page 2 (M-1100) 

The Court observed (opinion, pp. 11, 12): 

“It may be true that those parties are unable 

to raise sufficient funds by their own devices. And 

it may well b e that the only other alternative is an 

expensive special session of the Legislature, which 

could come as a burden ,upon its members, requiring 

them to meet a difficult problem in a brief and at an 

inopportune time. However, these are considerations 

which we cannot reach with out assuming to ourselves 

what the Texas Constitution does not allow us. That 

Constitution requires legislative authorization and appropriation for the expenditure of public funds. ” 

For the same reasons that state funds could not then be spent 

by you, no one may now do so. There is no legislative authorization. There 

are two necessary elements, legislative authorization and appropriation. It 

- 

is true that the Court said (opinion, p. 7): 

“We hold that it lies within the discretion and 

power of the Legislature to appropriate state funds for 

this purpose . . ” 

There must also be authorization. To read the Court’s opinion 

otherwise is to remove from the Legislature their discretion to determine 

whether the funds of the State of Texas are to be expended for that purpose. 

In rejecting your arguments in the recent case, cited above, the Court said 

(opinion, p. 11): 

“Secondly, the effect of this degree of implied 

authority would be to give the Secretary of State the 

decision on whether or not state funds should be used 

for party primary elections and, if so, for what particular expenses and to what extent. This would be an 

unconstitutional delegation of legislative power in violation of the separation of powers section (Art. 2, 8 1) 

of the Constitution. ” (Emphasis added. ) 

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I 

. 

Honorable Bob Bullock, page 3 (M-1100) 

Present state statutes regulate many activities, including primary 

elections. Expenditures incident to primary elections made by certain officers of the political parties do not signify a legislative intent to authorize 

expenditures of state funds. Only the Legislature may make the choice; 

only the Governor may call the Legislature for a special session. 

SUMMARY 

The Legislature may not validly appropriate 

funds in the future to pay expenses presently incurred 

in preparation for primary elections by county committees of political parties but not “provided for by 

pre-existing law. ” 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

J. C. Davis 

Rex White 

John Reeves 

Houghton Brownlee 

SAMUEL D. MCDANIEL 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

D C. MARTIN 

ey General of Texas 

NOLA WHITE 

First Assistant 

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