. 

i_, R+3 

. . .‘. 

OFI?ICE &F 

TEE &JTORXEY G%~ER& 

Ausm. TEXAS 

PRICE DANIEL 

ATTO- GENellAL ‘&larch 13, 1.k 

Bon. Claud Gllmer,~ggmap- * 

Committee on A~roprletlons 

HOIl~~~_._ .___ ,~+9tlves-~" 

Austin, Te n8 Oplnlon No. v-84 

Re: Constitutionality of House 

Bill No. 396, 50th Leglslature, Incldenttel Expenses 

Fear sir: . . Sor l4embers. 

Your request for en oplnlod by this depsrtment 

upon the above titled aubjeot matter Is aa followa: . 

"Encloaeb you will Slnd House Bill 

B.o. 3% whloh has been Introduced and 

Is now before the.Approprlatlon Commit- '. 

tee of the Hq!ye. .; . 

. 

'Thla bill Is en appropriation 

blll for !lncidental expenses1 only for 

membera i# the regular session. The Committee dealres to'know what In your opln- 

'ion can be included aa incidental expenses. . . 

At the present time certain expenses lncldent $0 the work of.each member la paid 

from the oontingent expense account, such 

as postage, stationery, and offi'iclal telephone calls. . 

"would the attached bill be oonstltu-' 

tional If It sets a ms+num expense allowanpe to.each member w$th?ut regard to the 

nature and amount of the expense.". 

House Bill Ho. 3% ea subiltted to tg3 Is ai 

follows : 

"H.B. Bo. 396 BY: 

, ABISJ: 

TO BE RNTITLSD '> 
Hon. Claud Gllmer, Page 2 -No. V-84 

“AH ACT amMng an appropriation of the 

sua.of Three Hundred Thousand 

Dollars ()3OO;COO), or ao much 

thereof es may be necessary, 

out of any funds la the State 

Treasury not otherwise epproprlated, to pay incidental expenses OS the membera of the 

~Regular Session of the Fiftieth 

Legislature, such expenses not 

to exceed Ten Dollars ($10.00) 

per day per member: provldlng 

?or ce$tificaties to the 

troller; making reoords 

able to the public; and 

an emergency. 

"BE IT RNA&D BY %T&tiISLATRRR OF TRR 

COUIDavaildeclaring 

STATE OF TEXAS: 

"Section 1.' There' la hereby appr.oprlated out of any funds in the State 

Treasury not otherwise appropriated, the 

sum of Three Hundred Thousarrd-Dollars 

($300,000),'~0$ sb much thereof aa may be 

necesssry, to pay incidental expenses of 

the members of the Regular Session of the 

Fiftieth Legislature such expenses not to 

exceed Ten Dollara ($10.00) per day per 

member, . '. 

"Section 2.. The certlfl~ate of the 

Secretary of the Senate, approved by the 

President of $he'Senete, or the certlflcate of the Chief Clerk of the House of 

Repr,esentatlves, approved by the Speaker 

thereof, Shall be sufficient evidence to 

the Comptroller upon whloh to audit the 

claims for expenses of the Piembers of the 

Regular ?eaalon of the Fiftieth Legisleture. ... 

"Section 3. Providing, however, that - 

a record of allmoneys appropriated in this 

,Blll shall be msde svallable for public .Lnspectlon the same as any other publio records in this State. 

"Section 4. The fact that the Regular 

Session of the Fiftieth Leglrleture of the 
AP-’ 

-- . ..‘, 

Hon. Claud Gllmer, Page 3'- Ro. v-84 .; : 

State of Texas la now la session, and public policy requires that the, appropriations 

made v thla Act shall be m&e immediately 

evallable, cpeatee an emergency and an.lmReratlve public necessity that the Constlt tutlonal Rule requiring bills to be read 

'on three several daya in esch Howe be suspended; and said Ruld la hereby suspended, 

c and that this Act shall take etfect end be 

in force Srom and after its passage, and 

it 1s so enacted.' 

This bill is an appropriation bill for lncl- . 

dental'expense only for lpembers of the Regular Session. 

Section 44 or Article III of the Conitltutlon 

is 98 followst 

"The Legislature shall provide by law 

for the cotip&nsatlon of all officers, aer' 

vanes, agents.and pu@llc contractors, not 

pr&&uJ for in this Constitution, but shall 

not grant extra compensation to~any officer, 

agent, ae?ant, or public contreotors, aster 

s@ch public ,servlCe ahall'hsve been performed 

or eontract entered into, for the performance 

of the same; nor 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 asme shsll 

nbt havibeen provld@d.for by pre-existing law; 

nor employ anyone in the name of the State, unless authorleed by pre-ex&?tlng law." 

The neceaelty for a pre-exit&g law to authorize 

the appropriation of any monl68 whatsoever froip the State 

Treasury is. fundamentel. .Thls eaaentla1 pre-existing law to 

authorl~ze the approprletlon in the present $natance consists 

in the'Constltutlon itself, creating t&e Legislature, and 

requiring it to function a8 a law-wklng brench of the Government . This by neceisery lmpllcatlon authorizes the payment 

from the Treasury.of all expenses, whether called "contlngent? or "IncIdental" or by whatsoever name, that are neceai 

sbry to etibie the Legislature to perform ltfi constitutions1 

duties. What perticulsr 6xpenses'come within the amblt of 

that implied power cannot be stated in words ~of finality. 

It undoubtedly would lticlude such things as poetage, statlonery,~ pages, printlag, and the like necessltles~ of the Leglslature. This haa been the uniformly accepted construction of 
434 

Hon. Claud Gilmer, Page 4 - Ro. V-84 

. 

the Conatltutlon by all dep3rtments concerned since the 

State's exlstenoe. 

We under&and what is cixnmonly known as the appropriation for "contingent expenses" Is designed to cove] 

and is amply sufficient to cover all such items as above 

indicated. Whether or not a particular item of expense 1: 

Properly payable out .of such contingent appropriation la 

an lndlvldual inquiry 88 to each such ols.lm. Those that 

are properly classed aa such incidental or contingent expenses are paMand those that sre not tb be so classed 

are not psld. 

'The wtter of per diem to the members of the 

Leglslst~ la, of course, conolusivel determined by the 

Constitution itself (Art. III, Sec. 249. Likewise, the 

item of trsvel expense la conoluslvely fixed by the same 

Section. Of course House Bill 396 does not contemplate 

supplementing members per diem, or travel allowance above 

that Of Section 24, or any contingent expellses, or interia 

expense incident to Committee work or.the like. By the 

' abov,e process of ellmlnatlon, it would appear that House 

Bill 396 does not.contemplate the psyment of any claim of 

any member, for any sum, for any expense, that is authorized by any pre-existing law express ol; implied. We are, 

therefore, of the opinion that the Bill, If enaoted into 

law, would be unconstitutional. under Section 44 of Artlclt 

III of the Constitution. 

In reply to your hypothetical question is to 

whether.or not +blil which sets a maximum expense sllowante to each member without regard to the-nature and smount of expense, we beg to advise such a bill would be 

unconstitutional as a gratuity to the ~lndlvldual members 

aocording as the items claimed constituted personal buslness of the respective members. Moreover, tkere would be 

no pre-existing law, nor could there be; for.such a' gratu. 

ity as to the personal expense Items. 

SUMMARY 

'. (1) House Bill 396 of the 50th Leglslsture 1s invalid and If passed would not 

authorlee the payment of monies from the 

State.Treasury, for t.he want of a pre- 

.exlstlng law therefor. .(Constltutlon, Art. 

III, Sec. 44). 

.!,.. 

I 
- . 

Hon. Claud Gllmer, 

-. 

Page 5 - no. v-84 

(2) ~A11 expenses necessary to the functlonlng of the Legislature wy be lawfully 

pald,from the State Treasury under the neqesaary lmpllcatlon of the Constitution ltaelf, whether such expenses be denominated 

"incidental!' or "contingent". 

(3) A bill appropriating a wxlmum expens6 ellowance to eac.h member of the Legialatue, without regard to the nature and the 

amount of the expenses, would be invalid because of the absence of 'pre-existing law", 

(Constitution, Art. III, Sec. 44), and llkewise because of a violation of the Constltutlon as 8 gratuity to the individual members 

accordlng~as the claims were for personal 

buslnesa of the respective members. (Constltution, Art. III, Sec. 44). 

Yours very truly 

ATTORNEXGRliWfALOFTRXAS 

.' OS/acm/lh 

BY 

Approved:Oplnlon 

02, Chairman 

Committee 

-