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### 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 oplnlodby this depsrtment upon the above titled aubjeot matter Is aa followa:

. "Encloaebyou will Slnd **House** Bill 

### B.o. 3% whloh has been Introducedand 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- 'ioncan be included aa incidentalexpenses. . . 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'iclaltelephone 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**eppro** prlated, to pay incidentalexpenses OS the membera of the ~Regular

Session of the Fiftieth Legislature,such expensesnot 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: "Section1.' There' la hereby appr.oprlated out of any funds in the State Treasurynot otherwise appropriated,

the sum of Three Hundred Thousarrd-Dollars ($300,000),'~0$

sb much thereof aa may be necesssry,to pay incidentalexpenses of the members of the Regular Session of the FiftiethLegislature such expensesnot to exceed Ten Dollara ($10.00)per day per member,

. '. "Section2.. The certlfl~ateof the Secretaryof the Senate, approvedby the President of $he'Senete,or the certlflcate of the Chief Clerk of the House of Repr,esentatlves,

approvedby the Speaker thereof,Shall be sufficientevidenceto the Comptrollerupon 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 appropriatedin this ,Blllshall be msde svallable for public .Lnspectlon the same as any other publio records in this State. "Section4. The fact that the Regular Session of the FiftiethLeglrletureof theAP-’ -- . ..‘, 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 emergencyand an.lmReratlve public necessity that the Constlt tutlonalRule requiringbills 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 compensationto~any officer, agent, ae?ant, or public contreotors, aster s@ch public ,servlCe ahall'hsvebeen performed or eontract entered into, for the performance of the same; nor grant, by appropriationor 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.forby pre-existinglaw; **nor** employ anyone in the name of the State, unless authorleedby pre-ex&?tlnglaw." The neceaelty for a pre-exit&g law to authorize the appropriationof any monl68 whatsoever froip the State Treasury is.

fundamentel. .Thls eaaentla1pre-existinglaw 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 **Govern** ment
. This by neceisery lmpllcatlonauthorizes the payment from the Treasury.ofall 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 impliedpower cannot be stated in words ~offinality. It undoubtedly

would lticlude

such things as poetage, statlonery,~ pages, printlag, and the like necessltles~ of the Leglslature. This haa been the uniformly accepted constructionof

## 434

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

. the Conatltutlon by all dep3rtmentsconcerned since the State's exlstenoe.

We under&and what is cixnmonly known as the appropriationfor "contingent expenses"Is designed to cove] and is amply sufficientto cover all such items as above indicated. Whether or not a particularitem of expense 1: Properlypayable out .of such contingentappropriation la an lndlvldualinquiry 88 to each such ols.lm. Those that are properly classed aa such incidentalor contingentexpenses 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 Constitutionitself (Art. III, Sec. 249. Likewise, the item of trsvel expense la conoluslvelyfixed by the same Section. Of courseHouse Bill 396 does not contemplate supplementing

membersper diem, or travel allowanceabove that Of Section 24, **or** any contingentexpellses, or interia expense incident to Committeework 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-existinglaw 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.ornot +blil which sets a maximum expense sllowante to each member without regard to the-natureand smount of expense,we beg to advise such a bill would be unconstitutional

as a gratuity to the ~lndlvldual members aocordingas the items claimed constituted personalbuslness of the respectivemembers. Moreover, tkere would be no pre-existinglaw, nor could there be; for.sucha' 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) ~A11expensesnecessary to the functlonlng of the Legislaturewy be lawfully pald,from the State Treasury under the neqesaary lmpllcatlonof the Constitutionltaelf, whether such expensesbe 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 individualmembers accordlng~asthe claims were for personal buslnesa of the respectivemembers. (Constltution, Art. III, Sec. 44).
Yours very truly ATTORNEXGRliWfALOFTRXAS

.' OS/acm/lh BY

Approved:Oplnlon 02, Chairman Committee

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