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                            OFTEXA~




     Hon. Robert S. Calvert
     Comptroller of Public Accounts
     Austin, Texas
                     Opinion No. V-1125
                         Re:   Construction  of Subsection 3 of
                               Section 2 of the Departmental
                               Appropriation  Bill of 1949 (B.B.
                               322, Acts 5ht Leg., R.S. 1949,
                               ch. 615, p. 1208).
     Dear Sir:
                   Your request   for   an opinion   reads,   in part,
     as follows:
            nThe regular session of the Fifty-first
        Legislature   in the General Appropriation
        Bill made the following   appropriation   to the
        Railroad Commission for the present year of
        the current biennium:
                                           "For the Years Ending
                                         Aug. 31, 1950    Aug. 31, 1951
        Maintenance and Miscellan-
        eous:
        16. Contingent expenses,
              sheriff    and witness'
              fees, court costs,
              traveling    expenses,
              postage, books, sta-
              tionery,    telegraph
              telephone,     files,  hur-
              niture and fixtures,
              express charges, print-
              ings, blanks, pamphlets,
              tariffs,    rulings and
              all other necessary help
              and expenses, including
              $500 per year for the
              joint employment with
              other State Commissions
              for a representative      in
              interstate     matters at
              Washington               sLlO8OO~OQ             SX'tO~.OQ
              Total Maintenance
              and Miscellaneous        $10,000.00             $10,000.00
                                                                 --.
Hon. Robert   S. Calvert   - Page 2   (V-1125)

     “In Section 2 of General Provisions         you will
     find the following language:
              “‘(3) Sale of Printed Matter.         Any
         contingent funds herein appropriated,         and
         any funds appropriated     for printing      may
         be used under the direction      of any 4 epart-
         ment for which any such appropriation         Is
         made for the publication      and distribution
         of any notices      pamphlet sj booklets     rules
         regulations    ani other matters of public in’
         terest;   provided that a charge may be made
         and collected    for such publications     and
         notices which will reasonably reimburse
         funds for such actual expense, but any such
         pamphlets shall be furnished to another
         state department without charge. t
              “b   Subsection   15 of section     2 reads
     as follows:
              M’b. The appropriations       herein pro-
         vided are to be construed as the maximum sums
         to be appropriated     to and for the several pur-
         poses named herein, and the amounts are in-
         tended to cover, and shall cover the entire
         cost of the respective      items and the same
         shall not be supplemented from any other
         sources; provided      however that the provis-
         ions and restrictIons      here 1n shall not apply
         to the State Commission for the Blind; and,
         except as otherwise provided, no other ex-
         penditures shall be made, nor shall any oth-
         er obligations   be incurred by any department
         of this State, provided        however, that noth-
         ing herein shall preven 4 any department head
         from paying less than the maximumamount set
         forth herein for any salaried position.         Un-
         less otherwise provided by law, officers        and
         employees traveling      in the performance of
         their official    duties shall not accept any
         sums of money from corporations,        firms or per-
         sons being audited, examined inspected,         etc.,
         and must receive their trave i ing expenses
         from the amounts appropriated       in this Act. The
         Comptroller is hereby prohibited        from paying
         the salary of any person employed by the State
         who violates   this provision.*
P   Hon. Robert   s. Calvert   - Page 3~ (v-1125)


               nThe Railroad Commission has made a
         charge and collected   money as reimbursement
         to the fund .for notices  and publications
         issued by that department and has made a
         request of the State Treasurer to deposit
         the moneys collected   for such publication
         back to the current appropriations above men-
         tioned.
                "The question has arisen in this de-
         partment as to whether the funds collected
         are a reimbursement to the appropriation      or
         whether it is a reimbursement to the fund
         and is not covered by an appropriation     for
         current use.     I shall, therefore, thank you
         to advise this department whether the moneys
         collected   by the Railroad Commission for the
         issuance and sale of publications    by that
         department can be deposited back to the cur-
         rent appropriation    for the use and benefits
         of the Railroad Commission."
                The Departmental Appropriation   Bill to which
    you refer contains appropriations    to the several State
    departments, boards, and commissions named therein for
    the current biennium beginning September 1, 1949. (H.B.
    322, Acts Skit Leg., R.S. 1949, ch: 615, p. 1208.)
    Section 2 thereof appears under the heading "General,
    Provisions"   and contains numerous riders,    including    sub-
    section 3 which you have quoted.     The legislative     history
    of this subsection   reflects that it had its origin as a
    rider attached to the Departmental Appropriation       Bill of
    1933 (H.B. 167, Acts 43rd Leg., R.S. 1933, ch. 166, pe
    5141, reading as follows%
               "It is further provided that any con-
         tingent funds herein appropriated,        and any
         funds appropriated     for printing may be used
         under the direction      of any Department for
         which any such appropriation       is made for the
         publication    and distribution    ~of any notices,
         pamphlets, booklets,      rules, regulations    and
         other matters of public interest;        provided
         that a charge may be made and collected         for
         such publications     and notices,    as will rea-
         sonably reimburse such funds for all actual
         expense     in connection therewith."
Ron. Robert   S. Calvert   - Page 4   (V-1125)


            The foregoing   rider has been brought forward
without substantial     change in its verbiage in all such
appropriation   bills   passed by the Legislature since 1933.
            Item 16, supra, contains an appropriation    of
$10,000 out of the General Revenue Fund in the State
Treasury to the Railroad Gommlsslon for each fiscal      year
of the current bienmium for numerous purposes, including
printing and contingent expenses.    Therefore    the pro-
visions of the rider under consideration    appi y to this
appropriation.
           Your question,  in substance, is whether the
money collected   by the Railroad Commission from the sale
of its publications   can be deposited in the State Treas-
ury to the credit of its current appropriation     contained
in Item 16 for the usa and benefit    of the Rallroad   Com-
mission, or must be deposited to the credit of the General
Revenue Fund.
          In connection with the question presented, w4
have been advised by the Railroad Commission of Texas as
follows:
           NThe Railroad Commission of Texas, through
        Its Rate Division,      a part of the Main Office,
        continuously     throughout the year issues mime-
        ographed notices      of hearings,   orders estab-
        lishing    rates, rules and regulations,      govern-
        ing then transportation      of passengers and prop-
        erty by railroad,      and by motor carriers,    as
        well as by express.       These mimeographed docu-
        ments, generally termed circulars,         are assigned
        numbers, and since the beginning of the fiscal
        year September 1, 1935 have been furnished on
        a subscription     basis a4 a charge designed to
        as nearly as could be estimated,        represent the
        cost of preparing and mailing the same; and
        the subscriptions      received therefor    have each
        year been deposited to the contingent fund of
        the Main Office of the Commission, to reim-
        burse that fund for the amount expended, in ac-
        cordance with the Provisions        of the appropria-
        ticn bill.&! quoted above herein     That the amount
        received from the sale of the,se circulars
        should properly be credited to the contingent
        fund of the Main Office of the Commission, as
        replacement of that part of said contingent
        fund expended therefor,       has never before been
        questioned.”
Hon. Robert   S. Calvert   - Page 5    (V-11?5)


           We have also been advised by your office
that ever since September 1, 1933,' States departments
for which appropriationswere    made for printing or
contingent expenses were permitted.to   deposit the
money received by them from the 'sale of their publica-
tions in the State Treasury to.the credit of their re-
speative appropriations   for printing or contingent    ex-
penses, and to expend the sarne.~~The validity   of this
long continued practice was not Questioned in your of-
flee until about the beginning of the'current    fiscal
year.
            The Legislature    did not carefully     select the
language which it employed .in the original        rider at-
tached to the Departmental Appropriation        Bill of 1933,
and in some respects its meaning or intent is uncer-
tain or doubtful.     For example, we have been advised
by your office   that it has at all times construed the
phrase "any contingent funds herein appropriated,"           which
appears in the first     sentence 'of all.such   riders,    to
mean "any funds herein appropriated        for contingent ex-
penses," for such phrase could not be given its literal
meaning because there was no such fund as ~!'contingent
fund" in the State Treasury.       Such construction      became
necessary for the purpose of giving effect         to the legis-
lative  intent.
           The Comptroller of, Public Accounts is the ex-
ecutive officer  charged by law with the superintendence
and management of the fiscal,concerns    of the State, as
Its sole accounting officer,    and he must keep accounts
on all moneys received by the State.    Tex. Const. Art.
IV Sec. 1, Art. 4344, V.C.S.
           In view of the long-established    practice   of
the Comptroller with reference    to the disposition   of the
moneys received from the several State departments, col-
lected from the sale of their publications,      we conclude
that he has at all times since September 1, 1933, until
recently,  construed such riders as, authority for such
practice.
           The effect of such departmental,construction
is determined by well-established       rules adopted by the
courts for their guidance in interpreting~statutes       when
their meaning is uncertain or doubtful.        Some of such
rules which are particularly.applicable       here read as fol-
lows:
Hon. Robert   S. Calvert   - Page 6     (V-1125)


            “When in the course of any controversy
     a question as to the effect     or operation of a
     statute is presented     it becomes the duty and
     it is the province o f the court to construe
     the statutory language.     This consists   in as-
     certaining   and determining the fair and proper
     meaning of the law, and in giving it, if pos-
     sible    the effect  and scope Intended by the
     legisiature.
            “A statute should be construed as under-
     stood at the time of its passage.    At all times
     subsequent to its enactment, an act should be
     given the same meaning that it had at that time,
     unless its meaning has been changed by amend-
     ment . w 39 Tex. Jur. 156, Statutes,  Sec. 86.
            nThe contemporaneous construction          of an
     act by those who are charged with the duty of
     its enforcement--that        is, executive and admin-
     istrative   officers    and departments, as well as
     by the courts and the Legislature--is            worthy
     of serious consideration         as an aid to interpre-
     tation,   particularly      where such construction
     has been sanctioned by long acquiescence.              . a .
     Moreover,   sound    public    policy   requires  the  re-
     solving of all doubts in favor of a contempo-
     raneous or practical        construction     that has been
     followed with substantial          uniformity.”    39 Tex.
     Jur. 234-235, Statutes,         Sec. 125.
           “The courts will ordinarily      adopt and up-
     hold a construction      placed upon a statute by an
     executive   officer    or department charged with its
     administration,     if the statute is ambiguous or
     uncertain,   and the constructio&iven         it is rea-
     sonable.    In   other  words,  the judiciary   will ad-
     here to an executive      or departmental construc-
     tion of an ambiguous statute unless It is clearly
     erroneous or urqound, or unless It will result
     In serious hardship or injustice,        although it
     might have been inclined to place a different         con-
     struction   upon the act.
           “The rule above stated is particularly     appli-
     cable to an administrative   construction   of long
     standing,  . . . where a law that has been uniform-
     ly construed by those charged with its enforcement
Hon. Robert   S. Calvert   - Page 7    (V-1125)


     has been re-enacted without a change of lan-
     guage . It has been variously   applied to con-
     structions,  opinions or rulings of the Gov-
     ernor, the Attorney General, the Comptroller,
     the Secretary of State, the Treesurer    the
     Land Commissioner, the Compensation Ci aim
     Board, and the State Department of Education.”
     39 Tex. Jur. 235, Statutes,   Sec. 126.
           ‘*In connection with the construction        of
     statutes,   there are numerous presumptions        in
     which a court may Indulge.    . . .
            “A construction      placed upon a statute by
     administrative     officers     is presumed to be cor-
     rect, especially      where It was contemporaneous,
     or nearly so, with the statute itself.             And a
     legislative    acquiescence       in the construction
     given a statute may be presumed from protracted
     failure    to amend or change It.”        39 Tex. Jur.
     242-243, Statutes,       Sec. 129.
            “The Legislature    is presumed to have under-
     stood the meaning of language that it employed,
     and to have known the construction        placed upon
     the same or a similar statute by the appellate
     courts and by the executive       or administrative
     officers.     And it may be presumed, in a proper
     case, that the Legislature       has acquiesced in the
     construction     of a particular   act, or that if it
     had not been satisfied      with such construction    it
     would have changed the verbiage of the law so as
     to show a contrary intention.”         39 Tex. Jur. 250,
     Statutes,    Sec. 132.
These rules have been applied by the Texas courts in num-
erous cases.  See, for example, meral      uae oil  0. V
you&,-Lee Oil Co% 122 Tex. 21, 52 S.W.2?56    (1933:; &
y. Stronn 128 Teg. 65 96 S.W.2d 276 (193f)v(concurring
opinion bi Chief Justiie Cureton)’ mr
United Life Ins. CQ.~ 181 S.W.26 bO7 (Tex. Clv.
error ref .)
           We believe this rider was attached to the respec-
tive departmental appropriation  bills  to .enable any State
department to which it applied to publish and distribute     to
the general public any of its notices,   pamphlets, booklets,
rules. regulations,   and other matters of public interest
Hon. Robert    S. Calvert   - Page 8     (V-1125)


without cost to the State of Texas.          To accomplish that
purpose, the Legislature       in the rider authorized such a
department to pay the expenses Incurred for printing and
distributing    such publications     out of its current appro-
priation    for printing or for contingent         expenses and to
make and collect     a charge therefor     as would reasonably
reimburse that item of appropriation         which was charged
w?.th such expenses.     “‘The primary meaning of the word
 1 reimburse’ is to pay back; to make return or restora-
tion of an equivalent for something paid, expended or
lost;   to indemnify    to make wholeaU 36 Words and Phrases
(Perm Ed. 1940) 723 o Therefore,        It was evidently       contem-
plated by the Legislature       that a department would charge
and collect    no more money from the sale and distribution
of its publications     than it expended for printing and
distributing    them thereby leaving unimpaired the entire
amount of the par c lcular appropriation         from which such
expenses were paid to be expended by the department for
the purposes designated therein.          In other words, any ap-
propriation    made to a department from which expenses for
printing and distributing       the publications      of that depart-
ment may be paid constitutes,        In effect,     a “revolving    fund,”
as that term is commonly understood,          for such purposes,             ?
since the only money which can be deposited to its credit
is that money received by the department from the sale of
its publications     to reimburse such fund for the money tak-
en therefrom to pay such expenses.          The reimbursement pro-
vision In the rider obviated the necessity            for the Legis-
lature to specifically      reappropriate     such money, and made
the provisions     of Subsection 15(b) of Section 2 of House
Bill 322 Inapplicable      thereto.
             In view of the foregoing        we are of the opinion
that the construction       heretofore   pi aced by your department
upon the original     rider t%ndits respective       successors   ap-
pearing In each successive        departmental appropriation      bill
passed by the Legislature        since 1933 was a fair,     reasonable,
and sensible Interpretation        thereof,   and is in accord with
the legislative     intent,    Bowever, if we entertained       doubt
as to the correctness       of such departmental construction
the rules for constructfon        of statutes cited herein wou9a
require us to confirm it, unless we could hold that such
construction     was clearly     erroneous or unsound, or unless
it ~~16 result in serfous hardship or injustice,             which we
cannot do.     Furthermore 9 the Legislature      is not only pre-
sumed to have understood the meaning of the language which
it at all times has used in these riders,           but is also pre-
sumed to have known of the construction          placed upon It by
Hon. Robert   S. Calvert   - Page 9   (V-1125)


your department, and to have assented thereto; otherwise
it would have changed the verbiage thereof so as to show
a contrary Intention.


           The money received by the Railroad Com-
     mission from the sale of its publications
     should be deposited in the State Treasury to
     the credit of Item 16 of its current appro-
     priation  for contingent  expenses, printing,
     and other purposes to reimburse that appro-
     priation  for the money withdrawn therefrom
     to pay the expense incurred in connection
     with printing and distributing     such publlca-
     tions to the general public.     Item 16, so
     reimbursed, may be expended by the Commission
     for the purposes designated therein.      H.B.
     322 Acts 51st Leg. R.S. 1949, ch. 615, p.
     1208, Sec. 2, Subseds. 3 and 15(b).
APPROVED:                    Yours very truly,
C. K. Richards                 PRICE DANIEL
Trial & Appellate            Attorney General
Division
Everett Hutchinson
Executive Assistant
                               Bruce W. Bryant
Charles D. Mathews             Assistant
First Assistant
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