             THE     A~TBENEY             GENERAL
                           OFTEXAS



                               April 1, 1971
Hon. W. S. Heatly, Chairman               Opinion No. M-824
Appropriations Committee
House of Representatives                  Re:   Constitutionality of
P. 0. Box 2910                                  House Bill 1480 of the
Austin, Texas 78761                             62nd Leg., R.S. 1971,
                                                creating the State
Dear Representative Heatly:                     Budget Commission.

          You have requested our opinion on'the constitutionality
of House Bill 1480 of the 62nd Legislature, R.S., 1971, which
creates:

                 a State Budget Commission to be com-
     posed of-tie Governor; The Speaker of the House
     of Representatives and four (4) members of the
     House of Representatives appointed by the Speaker,
     one of whom shall be the Chairman of the Appro-
     priations Committee and one of whom shall be the
     Chairman of the Revenue and Taxation Committee;
     and the Lieutenant Governor and four (4) members
     of the Senate appointed by the Lieutenant
     Governor, one of whom shall be the Chairman
     of the Finance Committee and one of whom shall
     be the Chairman of the State Affairs Committee."
     Subchapter A, Section 1.05, Subdivision (a).

            Section 1.07 of Subchapter A creates a State Budget
Director.    Section 1.06 of Subchapter A provides:

          "(a) The Commission, or any personnel
     under Its direction, may Inspect the properties,
     equipment, facilities, books, records and ac-
     counts of, or under the control of, any agency
     of the State.

          "(b) The Commission may conduct any hearings
     which may be desired In the preparation of the
     state budg$t or the execution of state appro-
     priations.

            Subdivision   (a) of Section 4.01 of Subchapter D provides:



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Hon. W. S. Heatly, page 2        (M-824)



         "(a) No funds appropriated by the Legls-
    lature to any agency or under the control of any
    agency for which appropriations are made by the
    Legislature may be expended except in accordance
    with the procedures set forth in this Subchapter
    D. "

          Section 4.03 of Subchapter D provides:

          "(a) The G overnor shall authorize the ex-
     penditure of funds by each agency on a monthly,
     quarterly, semiannual, annual or biennial basis,
     or any combination thereof.

          "(b) When conditions require and the
     Governor deems necessary, the Governor may ap-
     prove supplemental authorizations for expendi-
     ture to any agency out of any reserve funds or
     any other funds available for expenditure.

          "(c) All unencumbered balances remaining
     out of any authorization for expenditure shall
     not automatically be available to the agency for
     subsequent expenditure, but shall be subject to
     reassignment by the Governor to reserve status
     or to future authorizations for expenditure.

         "(d) To enable the Governor and the Com-
    mission to effectively execute the provisions of
    this Subchapter D, each agency shall submit to
    the Commission financial and program reports at
    times, and in the form and manner, required by
    the Governor.

          "(e) The Governor may delegate t3 the
     Director the exercise and performance of any
     power or duty,,conf'erredon the Governor by this
     Subchapter D.

          It Is noted that the State Budget Commission created by
the provisions of House Bill 1480 is to be composed of officers of
the Executive Branch of government and officers of the Legislative
Branch of government.  It is also noted that the Commission con-
stltutes something more than a committee of legislators to study
proposed legislation. See Terre11 v. King, 118 Tex. 237, 14 S.W.2d
786 (1929) and M. K. & T. Railway Co. v. Shannon, 100 Tex. 379, 100
S.W. 138 (1907).

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Hon. W. S. Hcatly, page 3       (M-824)



          Furthermore, Subchapter D authorizes the Governor to
control the expenditure of appropriated funds to each agency in
the State of Texas, and Subdivision (e) of Section 4.03 authorizes
the Governor to delegate to the Budget Director any power or duty
conferred on the Governor by Subchapter D.

          Thus the constitutional questions raised are whether the
bill violates the provisions of Section 1 of Article II of the Con-
stitution of Texas, providing for separation of powers of the three
branches of government; whether the bill constitutes an unlawful
delegation of legislative power to appropriate money for the
operatlon of State government; and whether the bill encroaches on
the constitutional power of the Governor to present estimates on
the amount of money required to be raised by taxation for all pur-
poses.

          Section 1 of Article II, Constitution of Texas provides:

           "Section 1. The powers of the Government of
     the State of Texas shall be divided into three
     distinct departments, each of which shall be con-
     fided to a separate body of magistracy, to wit:
     Those which are Leglslatlve to one; those which
     are Executive to another; and those which are
     Judicial to another; and no person, or collection
     of persons, being of one of these departments,
     shall exercise any power properly attached to
     either of the others, except In the Instances
     herein expressly permitted.

          A fundamental principle of American constitutional
jurisprudence is expressed by the above quoted provisions.   The
three deoartments of government are coordinated with and indeoendent
of each other, and none can enlarge, restrict or destroy the
of the other. Lytle v. Halff, 75 Tex. 128, 12 S.W. 610 (1889yPwers
Houston Tap Ry. Co. v. Randolph, 24 Tex. 317 (1859).

          In discussing the provisions of Section 1 of Article II of
the Texas Constitution, the Supreme Court stated In Langever v. Miller,
76 S.W.2d 1025 (Tex.Sup. 1934):
         "The origin of this provision is very well
    known. It first found expression, at least with
    clarity and precision, in the writings of Montesquleu,
    with which the members of the Federal Constitutional
    Convention of 1787 were familiar, early appeared in


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Hon. W. S. Heatly, page I+       (M-824)



     the organic laws of some of the states, and was
     adopted as a basic principle in the Constitution
     of the United States in 1787, from which it entered
     into the Constitutions of nearly all the states,
     including Texas, both as a republic and as a state.
     Montesquieu's Spirit of Laws (Collier's Ed.) pp.
     151, 152; 12 Corpus Jurls, pp. 802, 803, $234;
     Sayles' Constitutions of Texas, post.

           "Under this division of governmental power
     it is now an established and fundamental principle
     of constitutional law that the executive cannot ex-
     ercise either judicial or legislative authority;
     the judicial department cannot be clothed with ex-
     ecutive or legislative power; and the legislative
      'magistracy' cannot exercise the functions of
     either the Executive or the Judicial Departments.
     12 Corpus Jurls, p. 802 §234 et seq. Corpus Jurls,
     supra, declares:    'The separation of the powers was
     believed by Montesquieu, by Blackstone, and by
     American Constitution makers of the eighteenth
     century to be one of the chief and most admirable
     character&tics   of the English Constitution.'

          "A principle which is the very foundation of
     the government of the United States and of the
     several states must be deemed one essential to
     the preservation of the rights and liberties of
     the people, and should be thoughtfully and falth-
     fully observed by all clothed with the powers of
     government.

          "So important Is this division of govern-
     mental power that it was provided for In the first
     section of the first article of the Constitution
     of the Republic of Texas, and alone It constituted
     article 2 of each succeeding Constitution.   . . .'
     76 S.W.2d 1035.
          In Attorney General's Opinion O-4609 (1942) It was held
that the provisions of House Bill 284, Acts 47th Leg., R.S. 1941,
creating a "Joint Legislative Advisory Committee" and prescribing
the powers and duties of such committee violated the provisions of
Section 1 of Article II of the Texas Constitution for the reason
that It attempted to confer executive powers on a committee com-
posed of members of the Legislature.  This opinion was cited with


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Hon. W. S. Heatly, Page 5        (M-824)



approval In Attorney General’s Opinion V-1254 (195l)f concerning
the validity of various riders in the General Appropriations Bill
for the biennium ending August 31, 1953.

          A General Appropriations Bill may contain general pro-
visions and de~talls llmltlng and restricting the use of the funds
therein appropriated, If such provisions are necessarily connected
with and Incidental to the appropriation and use of the funds and
If they do not conflict with or amount to general le lslatlon.
Conley v. Daughters of the Republic, 106 Tex. 80, 152 S.W. 197
\19131   Thus It was concluded In Attorney General’s Opinion
V-1254’(1951) that:
            ,I
             . . . In addition to appropriating money
      and stipulating the amount, manner and purpose
      of the various Items of expenditure, a general
      appropriation bill may contain any provisions
      or riders which detail, limit, or restrict the
      use of the funds or otherwise Insure that the
      money Is spent for the required activity for
      which It Is therein appropriated, If the pro-
      visions or riders are necessarily connected
      with and Incidental to the appropriation and
      use of the funds, and provided the8 do not
      conflict with general legislation.

          Such powers regarding making appropriations and re-
stricting the use of such appropriated funds is a legislative
power to be exercised by the Legislative Branch and may not be
exercised by the Executive Branch.

          It Is therefore our opinion that the powers conferred
on the Governor by the provisions of Section 4.03 constitute an
unlawful delegation of legislative power In violation of Section
1 of Article II of the Constitution of Texas. See also Attorney
General’s Opinion WW-324 (1957) and WW-729 (1959).

           Section 9, Article 4, of the Constitution of
      Texas makes It the duty of the Oovernor to present
      at the commencement of each Regular Session of the
      Legislature his estimates of the amount of money
      required to be raised by taxation for all purposes.
      The provisions of H.B. 1480 requiring the Governor
      to act In concert with the Commission and In the
      wake of the Commission’s findings, tend to limit,
      delay and place conditions upon the Oovernor’s
      free and uninhibited exercise of his mandatory

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Hon. w. S. Heatly, Page 6                (M-824)



     executive duty under Section 9, Article 4 of the
     Constitution.  The Bill Is also unconstitutional
     In this respect.

          In view of the foregoing, It Is our opinion that House
Bill 1480 grants legislative power in the Executive Department of
government and executive power In the Legislative Branch of govern-
ment, all in violation of Section 1 of Article II of the Constitu-
tion of Texas.

                        SUMMARY

           House Bill 1480 of the 62nd Legislature, R.S.
     1971, creating the State Budget Commission composed
     of members of the Executive and Legislative Branches
     of government, violates the provisions of Section 1
     of Article II of the Constitution of Texas for the
     reason that this bill attempts to grant legislative
     power to the Executive Department of government and
     executive power to the Legislative Branch of govern-
     ment.

                                  Very truly yours,

                                  CRAWFORD C. MARTIN
                                  Attorney General of Texas



                                  BY
                                       First Assistant

Prepared by John Reeves
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
John Banks
Roger Tyler
James Broadhurst
James Cowden

MEADE F. GRIFFIN
Staff Legal Assistant

ALFRED WALKER
Executive Assistant               -3995-
