            THEATS'ORNEY             GENERAL
                        OP'XAS


                            May 25, 1965


Representative W. S. Heatly
Chairman, Appropriations Committee
House of Representatives
Austin, Texas
                                     Opinion No. C-448

                                     Re: Constitutionality   of
                                     H. B. 545
Dear Mr. Heatly:

     You have requested the opinion of this office as to the con-
stitutionality of 'House Bill 545. This bill provides for the
repeal of Sections 15a and 16, Article 668713, Vernon's Civil
Statutes, and the amendment of Section ,15,Article 6687b, and
Article 4413 (26). Vernon's Civil Statutes.   Essentially, this
bill provides for two things:   (1) the abolition of the
operator's and chauffer's license fund and the transfer of all
monies therein to the general revenue fund: and (2) establishes
as a public policy that the Department of Public Safety should
be supported 90% drawn from,the state highway fund and 10% from
the general revenue fund of the State.

      In considering the constitutionality of this propos~ed statute,
we shall first examine the amendment of Section 15 of Article 6687b,
Vernon's Civil Statutes. The amendement operates to abolish the
operator's and chauffer's license fund and transfer all monies
themin to the general revenue fund. Inasmuch as the operator's
and chauffer's license fund was established by statute, it may
be transferred or abolished by statute. Gulf Insurance Co. v.
James, 143 Tex. 424, 185 S.W.2d 966 (1945).




                                 -2126-
Representative W. S. Heatly, page 2   (C-448 1


     Section 2 of H.B. 545 amends Article 4413 (26), Vernon's
Civil Statutes, and reads as follows:

          "Sec. 26. FUNDS AND APPROPRIATIONS.   The
     legislature finds that a major portion of the
     operations of the Department of Public Safety are
     devoted to policing the public roads of the state,
     that these operations make a tangible and beneficial
     contribution to the supervision of traffic and safety
     on the roads, and that in view of that contribution it
     is fitting that a major portion of the money to
     support the Department of Public Safety be drawn
     from the state highway fund pursuant to the mandate of
     Section 7-a, Article VIII, Constitution of the State
     of Texas. The legislature declares it to be the
     public policy of the state that 90 per cent of the
     money for operating the,Department of Public Safety
     be appropriated from the state highway fund, and that
     10 per cent of the money for operating the Department
     of PublicSafety  be appropriated from the general revenue
     fund of the State."

Section 7-a, Article VIII, Texas Constitution, reads in part as
follows:

          "Sec. 7-a. Subject to legislative appropriation,
     allocation and direction, all net revenues remaining after
     payment of all refunds allowed by law and expense of
     collection derived from motor vehicle registration fees,
     and all taxes, except gross production and ad valorem
     taxes, on motor fuels and lubricants used to propel
     motor vehicles over public roadways, shall be used for
     the sole purpose of acquiring rights-of-way, constructing,
     maintaining, and policing such public roadways, and for
     the administration of such laws as may be prescribed
     by the Legislature pertaining to the supervision of
     traffic and safety on such roads: . .."




                                      -2127-
Representative W. S. Heatly, page 3 (C-448)


     Based upon the express language of the Constitutional provision
quoted, it is the opinion of this office that a Legislative
determination that the Department of Public Safety operates in
furtherance of the purposes for which the state highway fund was
established, constitutes a valid basis for the appropriation of
money to the Department from the state highway fund. See
Attorney General's Opinion C-424 (1965).

     We have been further requested to comment upon the legal
force and effect of the following phrase from the proposed Section 26,
quoted in full supra: "The legislature declares it to be the public
policy of the state that 90 per cent D.." The first sentence of
Section 26 of H.B. 545 states that the Legislature "finds that a
major portion of the operations of the Department of Public Safety
are devoted to policing the public roads of the State“. The second
and last sentence merely "declares it to be the public policy of
the State that 90 per cent of the money for operating the Depart-
ment of Public Safety be appropriated from the state highway fund".
This declaration of policy is not a finding that 90 per cent of
the funds necessary to operate said,Department is expended in
"policing such public roadways, and for the administration of such
laws as may be prescribed by the,Legislature pertaining to the
supervision.of traffic and safety on such roads".

     As the Constitution expressly provides that the highway
fund "shall be used for the sole purpose of acquiring rights-of-
way, constructing, maintaining and Eolicinq such public roadways,
and for the administration of such laws as may be prescribed by
the Leqislature pertaininq to the supervision of traffic and safety
on such roads", the,Legislature would only be authorized to
appropriate from the highway funds whatever amount is sufficient
to cover the actual expenses for the policing of the roadways and
in the administration thereof. It ,is clear from the constitutional
provision in question that the highway fund can only be expended
for the purposes therein enumerated. A declaration of public
policy, although expressed in a general law, is not binding on the
Legislature, in the event that the Legislature makes an appropriation,
in pursuance thereof, that would result in highway funds being
expended for purposes other than those purposes provided for in




                                -2128-
Representative W. S. Heatly, page 4 (C-448)


Section 7a of Article VIII of the Texas Constitution.  A mere
declaration of public policy is invalid and not binding if it
results in an unconstitutional expenditure of public funds.

                                   SUMMARY

          The Legislature may lawfully find that a major
          portion of the operations of the Department of
          Public Safety are devoted to policing the public
          roads of the State and the Legislature may lawfully
          appropriate sufficient monies from the state
          highway fund for such purpose. A declaration of
          public policy that 90 per cent of the money for
          operating the Department of Public Safety be
          appropriated from the state highway fund, although
          expressed in a general law, is not binding on the
          Legislature, in the event that the Legislature
          makes an appropriation in pursuance thereof, that
          would result in highway funds being expended for
          purposes, other than for those purposes provided
          for in Section 7-a of Article VIII of the Texas
          Constitution.

                                       Yours very truly,

                                       WAGGONER CARR
                                       AttorE;;;,            ~~~


                                      By:
                                            George W. Gray, III
                                            Assistant Attorney General
GWG :me

APPROVED:
OPINION COMMITTEE

W. V. Geppert, Chairman

T. B. Wright
Bill Osborn
Jerry Brock
Arth.ur.Sandlin '~:~
3; C. Davis
APPROVED,EORTHE ATTORNEY GENERAL
BY: Stanton Stone
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