# 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 afuture date to pay expenses already incurred innecessary preparations by county committees ofpolitical 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 topay expenses already incurred inpreparation for primary elections by county committees ofpolitical parties. Itis our opinion the Legislature may not validly make such an appropriation.

The State Constitution requires as arequisite 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 ofthe Treasury of the State, to any individual, on aclaim, real or pretended, when the same shall not have been provided for by pre-existing law; . . ,I’ Inthe recent opinion ofthe 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 offinancing, 7, no specific commission to underwrite the election costs can be implied inthe face ofthose contrary enactments .” (opinion, p. 11). *

+ Page references are tothe unpublished opinion ofthe Court. -5369-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 itmay well bethat the only other alternative is an expensive special session ofthe Legislature, which could come as aburden ,upon its members, requiring them to meet a difficult problem inabrief 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 ofpublic 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 itlies within the discretion and power ofthe 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 ofthe State of Texas are tobe expended for that purpose. Inrejecting your arguments inthe recent case, cited above, the Court said (opinion, p. 11):

“Secondly, the effect ofthis degree of implied

authority would be to give the Secretary ofState the decision onwhether or not state funds should be used for party primary elections and, if so, for what particular expenses and towhat extent. This would be an unconstitutional delegation of legislative power inviolation ofthe separation ofpowers section (Art. 2,8 1) ofthe Constitution. ” (Emphasis added. )

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. Honorable Bob Bullock, page 3 (M-1100)
Present state statutes regulate many activities, including primary elections. Expenditures incident toprimary elections made by certain officers ofthe political parties donot signify alegislative 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 inthe future topay expenses presently incurred inpreparation for primary elections by county committees ofpolitical 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 DC. MARTIN ey General of Texas

NOLA WHITE First Assistant

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