Honorable L. A. Woods
State Superintendent
  of Public Instruction
Austin, Texas
                  Opinion NO. o-5469
                  Re: Validity of the Qove?nor'B
                      approval of a deficiency appro-
                      priation to cover items of ex-
                      pense already Incurred.
Dear Mr. Woods:
         Your request for an opinion Is as follows:
         ~"Attached $0, will find a copy of a de-
     ficiency appropriation granted the State De-
     partment of Education.
          "In requesting this deficiency appro-
     priation we specifically asked that $160.00
     of the amount be allocated to the third
     quarter of our appropriation Number D-801
     for the purpose of paying telephone expense :~.~
     for the month of Hay.
         '"This grant was approved and signed by
     the Governor on May 25th. The Comptroller's
     Department advised us that the $160.00 re-
     quested for the purpose of paying the May
     telephone expense canno&--be used for the
     purpose because the expense was Incurred
     before the appropriation was available.
          "Since the $160.00 was speciflcally re-
     quested and grantee for the purpose set forth
     above, and unless so used will lapse, we re-
     quest your opinion aa to the use of this fund."
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Honorable L. A. Woods - page 2



          The deficiency was improvidently granted as to
the item of $160.00 for the purpose of paying May tele-
phone expense, and payment cannot be made therefor.
          Article 4351 of the Revised Civil Statutes govern-
ing the matter of deficiency claims provides that the applicant
therefor, "shall at least thirty days before such defii
ciency shall occur, make out a sworn estimiateof the amount
necessary to cover such deficiency until the meeting of the
next LegIslaturea" The power of the Governor therefore is
thus limited with respectto approving and,allowing such
claims.
         ,,,InOpinionNo. o-4865 we answered the question,
"May the Legislature appropriate moneys to pay obligations
Incurred before the appropriatfon to pay for same is made?",
as follows:
          "The Legislature . . o shall not I ~ . grant,
     by appropriation orotherwise:, :any amount of money
     out of the treasury of the State, to any individual,
     on a claim,,.realor pretended, when the same shall
     not have been provided,for by pre-existing law. s e *"
          "A~public ,officerwhose appropriations are
     exhausted cannot bind the State for subsequent
     expenditures. His authority to contract is only
     within the limit of the funds which the Legislature
     has authorized him to expend. Any greater expendi-
     ture is without authority of law. Expenditures
     in excess of these authorized in advance by the ~,
     Legislature are made without authority of 'pre-
     existing law',,,
                    and under Section 44 Article III
     of the Texas Constitution the.Legislature cannot
     appropriate,~moneysto pay such claims. Port Worth
     Cavalry Club v. Sheppard (Sup.Ct.) 83 S.W. (2) 660,"
          In the'cavalry Club Caseyit was said:
          "In the case at bar, the Adjutant General
     was limited In his right to contract (for,rentals)
     to the amount of his appropriation bill. He was
     also limfted.by the terms of such appropriation.
     When"he ~-attemptedto go beyond the powers conferred
     upon him by law, he acted without authority of law,
     and such act was and is void, and does not bind
     the State."
Honorable L. A. Woods - page 3



          There had not only been an approved deficiency
claim by the Governor, but there had also been a specific
subsequent appropriation by the Legislature in that case.
           Your question, therefore, is answered as above
stated.
          Whatwe have said does not apply to that portion
of the item covering calls or charges after the approval
of the claim by the Governor.
                                   Yours very truly,
                                  A+ORREYGERERAL      OFTEXAS



                                   BY    Ocie Speer
                                         Assistant
APPROVED Jul 31, 1943
ffroverSellers
First Assistant
Attorney General
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